And in an update to the original mask mandate lawsuit story, the district court that issues the temporary restraining order that was later stayed by the Supreme Court has now issued a temporary injunction, barring the state from forbidding San Antonio and Bexar County from requiring masks. Confused? Keep reading.
Bexar County’s mask mandate for public schools is allowed to remain in effect after the latest in a back-and-forth court battle between the county and Texas Gov. Greg Abbott.
Just one day after the Texas Supreme Court lifted a temporary restraining order that allowed for Bexar County’s mask mandate last week, 57th Civil District Court Judge Toni Arteaga ruled in favor of the county again on Monday.
“I’m aware of the importance of this decision and, as before, I don’t take it lightly,” Arteaga said. “My thoughts continue to be with those children in our schools who don’t have access to the vaccine but must attend school coupled with the dire situation right here in Bexar County hospitals.”
The ruling grants a temporary injunction that prevents the enforcement of Abbott’s executive order that barred local governments from issuing coronavirus-related mandates. The Texas Supreme Court’s ruling allowed for injunction hearings to continue in Bexar and Dallas counties.
Like the order granted last week, the latest ruling is likely to be appealed by the governor and Attorney General Ken Paxton. The mask mandate on public schools and city employees will remain in effect until the trial is scheduled, unless higher courts reverse the decision before then.
In their closing arguments, lawyers representing Bexar County relied on testimony from local officials, who painted a grim picture of what frontline responders are facing during the latest coronavirus surge fueled by the delta variant.
“The city and county both face a situation where, unless they do everything they can to curb the increase in cases, the health care system is threatened to be overwhelmed … and the city is struggling to provide essential services including ambulance, fire and other services that members of our community relay on every day,” said attorney Bill Christian, who represented the City of San Antonio.
The state’s attorney, Assistant Attorney General Kimberly Gdula, argued that local officials would be violating state law by issuing orders that conflict with Abbott’s executive orders. The governor is granted broad power through the Texas Disaster Act, she said.
“This court is not the forum for a policy debate regarding masks,” Gdula said. “Plaintiffs have made it clear today that they have opinions about masking policy. But this court can only address legal questions.”
See here for the previous report, which noted that the plaintiffs had not exactly been eager to comply with the SCOTx ruling in the first place. This is all separate from the other lawsuit that resulted in a statewide restraining order on Sunday night. As I, a noted non-lawyer, understand it, the purpose of the initial restraining order that was granted was to address claims by the plaintiffs that they are suffering harm right now as a result of the thing they’re suing over – the TRO is to mitigate that harm until there’s an evidentiary hearing. That TRO is what was lifted by SCOTx, who said in effect that any such harm was either insignificant or irrelevant, and no mitigation needed to be in place at this time. The purpose of the injunction is to say that the plaintiffs have presented enough evidence to suggest that they will prevail on the merits, and thus they can get what they are asking for until a final ruling is made. This too can and surely will be appealed, and I would be surprised if it is not stayed, but as before until such time the plaintiffs have gotten what they wanted.
The San Antonio Report adds on.
Arteaga said that like her decision to grant a temporary restraining order last week, the choice to grant a temporary injunction was not made lightly. She acknowledged the testimony of Bexar County resident Michelle Means, who told the court Monday that she did not want to send her youngest child to school with a face mask and was disappointed by the sudden mask mandate issued last week.
“I just wanted to apologize to all those parents, school administrators, the superheroes that we call teachers, for what someone called the equivalent to a legal tug-of-war,” Arteaga said. “Unfortunately, … our children are right in the middle.”
Arteaga’s ruling on Monday is only a temporary extension; the mask mandate will not be permanently in place until the case goes to trial. Once appealed, the 4th Court of Appeals and Texas Supreme Court would also have to rule in the city and county’s favor.
The city and county must now set a trial date with the state over a permanent injunction.
Arteaga heard from five witnesses during a hearing Monday, with four testifying on behalf of San Antonio and Bexar County and one for the state. During the hearing, local officials testified about rising coronavirus cases and hospitalizations and said the need to require masks in schools was urgent as more of them opened their doors to students.
Children under the age of 12 are still ineligible for the coronavirus vaccine, making them more vulnerable, said Dr. Junda Woo, who testified in her capacity as the public health authority for San Antonio and Bexar County. She also serves as the medical director for the San Antonio Metropolitan Health District. Though children generally have better health outcomes if they contract the virus, they can still bring it home to older, more vulnerable adults.
“People are out and about more and we have a large number of people who are unvaccinated,” she said. “And the delta variant is more contagious than the earlier version of COVID, where every person who had COVID will infect one or two people. With the delta variant, every person infects eight to nine people.”
Woo also cited rising hospitalizations of COVID-19 patients in the area. Those increases are now accompanied by smaller staff numbers at area hospitals compared to previous surges, Woo said.
“As a physician, I really worry we’re going to break our health care system,” Woo said. “The level of burnout, of anger that I see among health care providers who I have known for years, is at levels I have never seen before. We can’t keep asking people to do this over and over again.”
We’ll see how long it takes for this to get back before SCOTx, and how long it takes them to give Greg Abbott everything he wants. In case you’re wondering, the temporary injunction hearing for the Dallas lawsuit is August 24, so depending on where we are it’s possible we’ll go through this again in that court.
The Trib reports that the general reaction so far to all this is confusion and a mess of differing local actions.
Colleges in Travis County must require masks — but not two hours south in Bexar County. There, officials decided to keep the mandate just to K-12 — a move intended to give state officials challenging the order in court fewer opportunities to strike it down.
“We restricted it because we didn’t want to overreach and have another reason [for the state] to knock down our order,” Bexar County Judge Nelson Wolff said.
Amid the legal disarray, many school districts have walked back plans to require masks.
Northeast Independent School District in San Antonio imposed a mask order after Bexar County officials convinced a judge to pause Abbott’s ban on mask mandates. But after Sunday’s Supreme Court ruling, the district scuttled its plans.
The same goes for Fort Bend ISD — another district that was set to require masks, but changed course in defiance of Fort Bend County Judge KP George’s mask order for the county, which includes public schools.
Some districts aren’t waiting for the state to challenge local mask orders to reverse course. In Travis County, Eanes Independent School District pulled back its mask mandate after the state Supreme Court decision — even though the decision didn’t apply to Travis County and the county mask mandate remains in effect.
“We will follow the law as it is determined by the highest court at the time in this legal chess match,” the school district posted on Twitter.
Others have stuck with their mandates through the chaos. Dallas, Austin and San Antonio ISDs will continue to require masks despite the Supreme Court order.
In parts of the state where masking orders remain untouched by the legal crossfire, officials are weighing the possibility of expanding the mandate beyond schools and colleges.
Plenty of businesses in Austin have adopted their own masking requirements without a local mandate, Austin Mayor Steve Adler said. But he hasn’t ruled out mandating masks for private businesses if the number of COVID-19 patients in hospitals continues to rise — though Adler doesn’t relish the idea.
“We’re all just trying to keep people safe and to keep the economy open,” he said.
It’s a mess, it’s Greg Abbott’s fault, and there should be more resistance to his nonsense. Thank you for attending my TED talk.
And in the meantime, a new player has entered the fight.
El Paso health authority Dr. Hector Ocaranza said on Monday he would issue an order requiring masks in indoor settings, including schools. The City Council voted 5-3 to approve a motion to join legal challenges to Gov. Greg Abbott’s executive orders that strip local governments of the ability to issue mask mandates.
“It is my intent to have a local health authority order to have a mask mandate throughout the city and the county in all indoor establishments to include the schools,” Ocaranza told the City Council at an emergency meeting conducted over Zoom.
He said he would allow exceptions to the mandate, which he plans to make effective Wednesday morning, but did not specify them. He said his order would align with recommendations from the Centers for Disease Control and Prevention and could be re-evaluated in 30 days.
City Attorney Karla Nieman said a lawsuit against Abbott would be filed tonight and the city hoped to be heard by a judge on Tuesday.
“Tonight” was Monday night – as far as I could tell late Monday there were no news stories confirming that such a suit had been filed. I’ll keep an eye on this. The Current has more.
UPDATE: The latest version of the Yallitics podcast does a nice job explaining all the legal mumbo jumbo, in case you still need some help understanding it all.