Harris County gets its restraining order against Abbott

Step one.

A judge in Travis County on Friday granted Harris County a temporary restraining order, blocking Gov. Greg Abbott’s ban on local COVID-19 restrictions.

The decision by Judge Jan Soifer of the 345th Civil District Court provides legal cover for the county health department, which Thursday issued a mask mandate for schools and day care centers at the direction of County Judge Lina Hidalgo.

“While this decision is temporary, it’s a victory for residents in Harris County who are concerned about this public health crisis,” County Attorney Christian Menefee said in a statement. “We need every tool at our disposal to stop the spread of COVID-19, including masks and other measures that are proven to slow the spread.”

A handful of area school districts, including the Houston, Spring, Aldine, Galena Park and Galveston Independent School Districts, have issued mask mandates. Others said they were waiting to see how the legal battles between the state and local officials are resolved.


[Harris County Judge Lina] Hidalgo on Aug. 5 moved the county to its highest pandemic threat level, which urges unvaccinated residents to stay home and avoid unnecessary contact with others. She said masks are particularly important in schools because children under 12 cannot yet be vaccinated, which health officials agree is the best defense against COVID-19.

Harris County’s order also requires schools to notify parents when a student comes into contact with someone who tests positive for the virus; the Texas Education Agency advises but does not mandate this.

“At this point, public health interventions like masking, contact tracing and notifications in schools remain (children’s) only protection against the virus,” Hidalgo wrote in a letter to superintendents Tuesday.

In his lawsuit, Menefee said the governor had exceeded the authority given to him by the Texas Disaster Act of 1975, which, he argued, allows Abbott to suspend laws only in certain circumstances.

Abbott and Attorney General Ken Paxton, who was also named in the suit, are almost certain to appeal. The pair pledged in a joint statement Wednesday to sue any “school district, public university or local government official” who violates the governor’s executive order.

Randall Erben, a professor of the University of Texas School of Law, said Abbott has broad powers under the Disaster Act. This situation is unique, said Southern Methodist University law professor Nathan Cortez, because the governor is attempting to limit, rather than enhance, the government’s response to a disaster.

See here for the background, and here for a story about what other area ISDs are doing. I can’t blame any of them for waiting to see how the litigation winds up before changing course, though I would strongly encourage them to be as forcefully on the side of protecting their students and teachers and staff as much as possible.

As noted before, Abbott and Paxton are now appealing the lower court orders that allowed for the mask mandates to go forward for now. So far that isn’t going well for them, either, though that comes with an asterisk:

Yeah, we know that’s where this is going, and there’s no particular reason to be optimistic. It should also be noted that a district court judge in Tarrant County issued a TRO blocking the Fort Worth ISD’s mask mandate in response to a suit filed by some parents. That was a Republican judge, though there was more to the case than just the executive order. It’s not hard to see the partisan split, though. Still, every loss Greg Abbott suffers, even if transitory, is worth it.

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15 Responses to Harris County gets its restraining order against Abbott

  1. Jeff N. says:

    Abbott filed a mandamus petition to SCOTX last night, and the Court requested Dallas County’s response by 5 p.m. today. All to prevent the urban school districts from requiring masks as school opens. Our public health system is broken, like so many other parts of our state government.

  2. Kibitzer Curiae says:


    RE: “This situation is unique, said Southern Methodist University law professor Nathan Cortez, because the governor is attempting to limit, rather than enhance, the government’s response to a disaster.”

    COMMENT: Not only unique, also preposterous: Invoking emergency powers to squash disaster responses at the grassroots level where people are dying.

    How much crazier can it get?

    When political leaders make crazy decisions – like declaring a disaster and then using emergency powers thus acquired to block efforts to fight the declared disaster –  it is incumbent upon civil society to call them out on it.

    There is, of course, a political rationale that local political leaders better not articulate lest the situation get even worse. Bad enough that part of the media irresponsibly hype up the state-local power struggle with talk of rebellion and civil war.


    Following the autocrat’s playbook, Governor Abbott endeavored to use the ongoing disaster, and the Texas Disaster Act, as an excuse to assert dominance over local officials and bend them to his will.

    And there is something more ominous in motion here that goes far beyond the masking controversy: Getting the Judicial Republicans on the Texas Supreme Court to bless the power grab by one of their own, and imbue it with the veneer of legitimacy as a judicially-fashioned doctrine that might be summed up thusly:

    “When I declare a disaster, I am the State.”


    More specifically, the Governor purported to suspend specific statutes that provide the  legal basis for local authorities to implement public health measures plus all other laws that might stand in the way of Abbott thwarting local disaster responses that are not to his liking.

    While the San Antonio Court of Appeals ruled against the Abbott-AG Alliance without bothering to give a reason – alas – the Dallas Court of Appeals denied their mandamus petition with a short opinion that makes clear that Governor’s suspension powers are not unlimited.

    “[A]pplying the plain language of the Texas Disaster Act, we conclude Judge Jenkins demonstrated a probable right to relief that the Governor’s power to suspend certain laws and rules under section 418.016(a) does not include the power to suspend the Act’s grant of authority to mayors and county judges to declare and manage local disasters under section 418.108. See TEX. GOV’T CODE §§ 418.001–.261. Accordingly, we deny the petition for writ of

    In re Abbott, No. 05-21-00687-CV (Tex.App.- Dallas, Aug. 13, 2021)(orig. proc.)

    In other words, the Governor doesn’t get to use his emergency powers at the statewide level to quash the disaster-fighting efforts undertaken by local officials at the local level, based on a local disaster declaration of their own.
    Just imagine the scenario of Houston experiencing another hundred-year flood – perhaps with an Addicks or Barker dam break, and Abbott decides to cancel the declaration of a local disaster by Mayor Turner and County Judge Hidalgo, and related efforts to save lives. Houston is, after all, a Democratic stronghold and Democratic voters would perish disproportionately. And with their hands tied, the local officials would be relegated to status of spectators. Unable to take care of the community they were elected and sworn to serve.

    It would be politically expedient for a devious GOP Governor with unchecked ability to declare a state-level disaster for the purpose of thwarting a local disaster response. 

  3. Jason Hochman says:


    RE: Not only unique, also preposterous: Invoking emergency powers to squash disaster responses at the grassroots level where people are dying.

    Amendment 10: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

    Following the science is a shibboleth that allows petty tyrants to enforce their whims unchecked.

    SPECIFICALLY ON MASK MANDATES: We can debate the efficacy of mask use. I, and others in my medical community, recommend that you wear a mask, because the vaccines do not work,. At least not the way that you were led to believe they work. The question here is, do mask mandates work? For this, there is not any evidence, as “cases” went up and down in jurisdictions with and without mask mandates. No solid evidence exists that mask mandates saved lives, lowered infection rates, or changed the course of an epidemic. Again, let’s keep in mind that the efficacy of masks, although in question, is not here the question, but rather should we ask tyrants to order everyone to wear a mask, out of the irrational fear that has been sown, by other tyrants?

    If Houston/Harris County suffered a hundred year flood, the disaster would be much more localized than a global epidemic, so this is a comparison of hysteria, and, a first year law student would be assigned an easy punishment for making an argument based on such logical fallacy.

    Sec. 418.044. ASSISTANCE IN DEVELOPMENT OF LOCAL PLANS. (a) The division shall take an integral part in the development and revision of local and interjurisdictional emergency management plans. For that purpose, the division shall employ or otherwise secure the services of professional and technical personnel capable of providing expert assistance to political subdivisions and emergency management agencies. Those personnel shall consult with the subdivisions and agencies on a regularly scheduled basis and shall make field reviews of the areas, circumstances, and conditions to which particular local and interjurisdictional emergency management plans apply and may suggest revisions.

    As such, it is the responsibility of the governor to lead a public health response to a disaster. The purpose of public health is to inform the people, not bully them.

    In other words, the governor can use his emergency powers to revise the local government response, and to stop the authoritarian use of public health measures.

    Now, wear your mask, because your vaccine is making you a super spreader. Since you are vaccinated, you think that your symptoms are just allergies, or stress, or tired from staying up too late last night, etc. but in reality you are breathing your foul, super spreading disease breath in my direction.

    Funny how the media notes that all of the “cases” in the vaccinated are “mild” after having ignored for more than a year that most of the cases from the start were “mild” and didn’t require extensive medical treatment/hospital care or cause death.

  4. Kibitzer Curiae says:


    Re: “Amendment 10: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”



    The federal government is a government of limited powers, and the federal courts are limited by Article III. That has no bearing on what is the issue here: intergovernmental power relations within the State of Texas: State-Local (hierarchical division of powers) and Governor-Lege (functional separation of powers into “branches” of government, which the Texas Constitution refers to as “departments”). And the state district courts, unlike their federal counterpars — are courts of general jurisdiction. 

    Bottom line: There is no federal dimension here (except if you want to reason by analogy and compare federal-state relations with state-local relations).  


    An arguable exception would exist if federal constitutional rights were implicated. No such claims here, though.

    The parties in the currently pending high-profile mask mandate cases are governmental entities (cities, counties, and school districts) and governmental officials in their respective official capacities (county judge, governor, attorney general), though there may also be some private parties suing, such as parents suing school districts. Remember how GOP personalities Dr. Hotze and Jared Woodfill brought multiple suit over local and state COVID-19 containment measures last year. But this is first and foremost an inter-governmental tug-of-war.

    That said, Harris County did include a due process claim in their suit against Gov. Abbott and AG Paxton, but it appears to be limited to the issue of facing arrest (of local officials who are, of course, also natural persons, meaning that their liberty is at stake as living human beings). No natural-persons plaintiffs are currently named in County Attorney Manefee’s pleading, however. Perhaps Harris County is also proceeding as parens patriae at the local level or at least on behalf of its workforce. Why not? Paxton went to the SCOTUS after the presidential elections last year donning the “State of Texas” mantle and purported to act in a parens patriae capacity for his Lone Star subjects.    

    In the Harris County challenge to GA-38, it is the county qua county – a political subdivision of the state — that is asserting the claim that GA-38 is invalid. Commissioners Court duly took a vote to authorize suit. They added Paxton as a defendant, presumably because he is the enforcer who comes after the folks in his crosshairs and will actually haul them into court, while Abbott just signs and shows off executive orders from his mobile throne. In the San Antonio litigation, they are even arguing that Abbott is not a proper defendant because he doesn’t enforce his own orders while insisting at the same time that he is the Commander in Chief.  

    In the Dallas case, which is now before the SCOTX in the procedural posture of a mandamus against the Dallas Court of Appeals (rather than District Judge Tonya Parker directly), the County Judge (Clay Jenkins) is the plaintiff (and also a Defendant), not the County of Dallas as an entity.


    In his briefing the AG asserts incessantly that the Dallas TRO enjoins the Governor statewide, but that is debatable. If that were the consensus understanding, the other governmental entities would have little reason to bring lawsuits of their own against Abbott. In any event, even as to Jenkins and Dallas County, the TRO only provides a temporary ruling, with a hearing coming up on a temporary injunction. Abbott, incredibly, claims he will suffer irreparable sovereign injury if his will be disobeyed for an untenable spell of two weeks.

    But if the Supremes were to issue a substantive opinion in the mandamus stemming from the Dallas case (docketed as Tex. No. 21-0686), the legal holding would create binding precedent for the entire state (“We get to say what the law is”), and would thus invalidate all local mask orders and TROs statewide. And do so instanter, as soon as this Sunday. All those other cases wouldn’t have to work their way up to the apex.

    Which raises an intriguing question: What if Clay Jenkins were to non-suit his claim against Abbott in the trial court before the SCOTX strikes the fatal blow this weekend?

    Wouldn’t a nonsuit of Defendant Abbott moot and thus terminate the pending mandamus gambit of the Abbott-AG Alliance, depriving the SCOTX of its first opportunity to install Abbott as civilian Commander-in-Chief for all of Texas?

    That might at least provide some respite in the short run. And it would only moot the TRO that enjoins Abbott temporarily, not Jenkins’ mask order itself. Or so one would hope.

  5. Manny says:

    Well, at least the racist/republican trolls are no longer stating that Covid is a hoax.

  6. Pingback: And it’s off to SCOTx for the mandate stuff – Off the Kuff

  7. C.L. says:

    Manny… spot on. They’re taking baby steps.

  8. Jason Hochman says:


    while the constitution may not govern inter governmental relations at a local or state level, there is the question of the rights reserved to the people.

    As the “law of the land” the US Constitution has the final say. If a government actor wishes to usurp the rights reserved to the people, another government agency does have authority to protect the rights of the people from such tyrants.
    Not to mention that there is no science that shows mask mandates make a difference ( again mandating masks is yet another layer separate from the valid debate of whether or not masks do much of anything in the first place).
    The full weight of government should be brought down about the billionaire class and Klaus Schwalb, who have all enriched themselves through the greatest wealth transfer in the history of human kind, all the way aided and abetted by the “Progressives.”

  9. Kibitzer Curiae says:

    Abbott: L’état, c’est moi

    General Paxton’s lieutenants (minus Grant Dorfman, who is conspicuous absent from the roster of litigators) are now equating Gov. Greg Abbott with the Sovereign … and bewail his suffering of irreparable “sovereign” injury if his executive order is not heeded until the scheduled temporary injunction hearing.

    See Relator’s Reply to Judge Jenkins’ Response to mandamus petition in Tex. No. 21-0686, In re Abbott, filed Aug 14, 2021.
    https://search.txcourts.gov/Case.aspx?cn=21-0686&coa=cossup (last item posted as of Sunday 2:30pm)

    Unfortunately the supplicants in oppositon — we might re-denominate them the real-subjects-in-interest — are already referring to Abbott as “the State” too.

    A veritable slippery schlitterbahn into subservience.

    Never mind that in a democratic republic, the people are the sovereign, not the King.

    Never mind that that pesky document known as the Texas Bill of Rights expressly commands that “all political power is inherent in the people, and all free governments are founded on their authority, and instituted for their benefit.”

    And then there is Section 28 titled SUSPENSION OF LAWS: “No power of suspending laws in this State shall be exercised except by the Legislature.”

    But, on the pretension — soon to be elevated to grand jurisprudential principle — that Greg Abbott is now the State (“L’état, c’est moi”), the legislature is just another part of his entourage. An appendix to his Court. No wonder he has pledged to round up the absent members and make them pass his special agenda.

    Hochman: The Abbott-AG Alliance does not contest the efficacy of the face coverings as a mitigation measure. That would be a fact issue to be tried, if seriously disputed. It is not. Also remember that Abbott himself previously issued a face-covering order (GA-29).


    In any event, if the Supremes do decide to settle the dispute at this stage of the game, they are gonna do it “as a matter of law” on what they will say is a “pure question of law” for the court, i.e., for us, your supremes. Motto: We get to say what the law is. And we have the last word.

    Jenkins’ lawyers have actually agreed that it’s all about the statutory construction (i.e., the proper interpretation of the text of the Disaster Act). Nor do they argue any constitutional issues. See their Response at p. 10: “This is not a political-question or inherent-power case. It is a statutory-construction case.” Any constitutional issues would have to be litigated in other cases. They disagree, of course, that Abbott has absolute powers once he has unilaterally declared a disaster.


    Interestingly, some of the amici (not parties) argue that Abbott’s mask-order ban is preempted by federal law, at least as it affects school district’s decisionmaking on pandemic mitigation and infection control to protect students, educators, and staff.

    The U.S. Secretary of Education has sent a letter to Abbott, which is attached to one or more of the amici submissions. He sides with the school districts.

  10. Jason Hochman says:

    Hochman: The Abbott-AG Alliance does not contest the efficacy of the face coverings as a mitigation measure. That would be a fact issue to be tried, if seriously disputed. It is not. Also remember that Abbott himself previously issued a face-covering order (GA-29).

    Correct, it does not. Agreed.

    As I had posted there are two layers of efficacy which are still up for debate: 1) Do mask mandates make a difference? and 2) do the masks themselves, mandated or no, make a difference?

    These questions have not been answered definitively, but there is scant evidence for the efficacy of either one. This is why the news and the Democrats and all of those who are pushing for mask mandates must be stopped. Why are they intent on blaming the common people, for not wearing a mask, not getting vaccinated, not taken the orders of the bigger and betters? Why are they pushing a strategy that is not likely to help much instead of attacking the bigger picture (the billionaires, the corporate medical system, and so forth)?

  11. Kibitzer Curiae says:



    Before Neil Amstrong and Mike Collins — oops, Buzz Aldrin — took that great step for Mankind there was no precedent for men getting where they went.

    COVID-19, too, is unprecedented (and unlike the moon, it’s a big problem, and a response really not a luxury).

    That’s why that particular coronavirus is called novel. So, we have to do the best we can with not-so-perfect information, and remain open to learing more.

    Your scepticism on masks goes against the weight of the judgment of the folks in the know — worldwide expertise — and seems to be fueled by Fauci-phobia if not personal grudge or hate.

    Now, if you were sceptical about the quality of snakeoil or miracle potions sold by — say — some self-appointed never-been-to-med-school Doktor Suess, that would be a different matter.

    Good luck busting the billionaires. At least there is historical precedent doing that. Look up “trust busting”, if interested. Hint: T Rex and the premillenial Progressives had something to do with it.

  12. Jason Hochman says:

    But, the reality is that COVID 19 is not really that unprecedented. There have been corona viruses infecting humans for eons. Perhaps this one is novel, but the novelty does not make it that much different from prior pandemics of respiratory viruses, whether viral pneumonia or influenza.

    During the flu season of 2017-2018 I can remember ICUs being over crowded, and tents in parking lots at hospitals.

    My skepticism on masks comes from reading actual clinical trials of masks, which show no statistically significant efficacy for masks. Also, the fact that even with everyone wearing masks, there were still many “cases” of COVID. The folks “in the know” are politically and economically motivated. If you worked in The Science, you would lost a lot of faith in The Science, from seeing that the ego and the money are big motivators of science. The university model encourages big projects, that cost a lot of money, and that don’t allow the post docs being trained to really understand The Science and how it works. It’s all about the Benjamins.

    I am skeptical about the snake oils of Dr. Mercola. However, he is correct that taking things like vitamin D and vitamin C reduces your chances of illness, and these are inexpensive and innocuous measures to take. You don’t have to buy them from Dr Mercola, get them at your local grocery store.

  13. Pingback: SCOTx does what SCOTx does – Off the Kuff

  14. Manny says:

    Even with seat belts and airbags, there is still insignificant efficiency in preventing death by a car accident. Or helmets for bicycle riders.

    Jason, I guess your masters are no longer telling you to push that covid is a hoax.

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