Room service, as always.
The Texas Supreme Court on Sunday temporarily blocked mask mandates in Dallas and Bexar counties, marking a pivotal moment in the showdown between state and local government as coronavirus cases and hospitalizations surge in Texas.
The ruling comes after several school districts and a handful of counties across the state defied Gov. Greg Abbott’s executive order that restricted local entities from instituting mask mandates. On Friday, the 4th Court of Appeals in San Antonio upheld a lower court ruling that permitted Bexar County to require mask-wearing in public schools. Shortly after, the 5th Court of Appeals in Dallas upheld a more far-reaching order from Dallas County Judge Clay Jenkins that required masks in public schools, universities and businesses.
In a petition for a writ of mandamus to the Texas Supreme Court, Texas Attorney General Ken Paxton’s office said the Texas Disaster Act of 1975 gives the governor power to act as the “‘commander in chief’ of the state’s response to a disaster. Attorneys representing cities and counties that have sued Abbott over his executive order have argued that his orders should not supersede local orders.
“Let this ruling serve as a reminder to all ISDs and Local officials that the Governor’s order stands,” Paxton said in a tweet on Sunday after the ruling.
Abbott’s response to the decision was less pointed, specifying that his executive order does not prohibit mask-wearing.
“Anyone who wants to wear a masks can do so,” Abbott said in a tweet.
See here and here for the background. Abbott’s tweet is pathetic in its misrepresentation of the issue. Masking only works if the people who are sick – whether they know it or not – are in compliance. That means that the people who are most likely to be sick – unvaccinated adults and unvaccinated children, which is all children under the age of 12 – especially need to be masked, and as we very well know, that first group and their children are not ever going to do that voluntarily. My mask doesn’t protect me from you (unless I’m wearing an N-95), it protects you from me. If you’re not reciprocating, it’s not doing us any good. The problem with Greg Abbott is not that he doesn’t understand this, it’s that he values the opinion of the largely unvaccinated and completely indifferent Republican primary voters more than anything else. And so here we are.
As for Paxton, he’s wrong in two ways. First:
This is incorrect. #SCOTX issued stays of lower-court rulings that had temporarily blocked GA-38. No school district was “ordered … to follow” the Executive Order. All that took place was that judicial restraining orders *against* that Executive Order were frozen pending appeal.
— Steve Vladeck (@steve_vladeck) 7:35 PM – 15 August 2021
Austin Mayor Steve Adler and Travis County Judge Andy Brown last week required face coverings to be worn inside public schools and government buildings to deal with a surge in local COVID-19 infections. Both insisted the orders remained in effect because Sunday’s court action did not involve local rules.
“While we await a final decision, we believe local rules are the rules,” Adler said on Twitter. “Regardless of what eventually happens in the courts, if you’re a parent, please keep fighting to have everyone in schools masked. We stand with you.”
A number of other mask mandates rely on trial court orders not yet before the Supreme Court, including restraining orders issued Friday in Travis County for Harris County and a half-dozen South Texas school districts.
Harris County Attorney Christian Menefee said Sunday’s Supreme Court action did not affect his county, and he plans to move forward toward an expected injunction hearing like Dallas and San Antonio.
The Chron story makes the same point. To be sure, Paxton can pursue the same kind of writ against Harris and Austin and those other school districts – several others that have as far as I know not been involved in litigation yet have implemented mask mandates – and when SCOTx issues a final ruling it can and likely will encompass all of the other jurisdictions in its order. But until then, no one other than Dallas and Bexar Counties are directly affected. And for what it’s worth, it’s not clear to me what would happen if they just decide to tell Abbott and Paxton and SCOTx to go pound sand. They haven’t yet, and they may never, but don’t throw out the possibility. The San Antonio Report has more.
#BREAKING: Dallas ISD will continue with its mask mandate at this time.
Superintendent Michael Hinojosa says the order applied to Dallas County – and did not say one word about @dallasschools.
— Christine Vandergriff (@c_vandergriff) 7:33 PM – 15 August 2021
I mean, he’s not wrong. And this is what I’m saying about the state’s ability to enforce this. As above, Paxton could go after DISD and make them comply. But until and unless he does, what’s stopping them from continuing on as they had planned?
UPDATE: This too:
Per @COSAGOV, the Bexar County health authority’s public school mask mandate remains in effect, despite today’s order from the Texas Supreme Court. #txlege
— Jasper Scherer (@jaspscherer) 8:23 PM – 15 August 2021
At this point it’s not clear to me that anyone truly feels bound by this SCOTx order.