Bexar County mask mandate back on

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.

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4 Responses to Bexar County mask mandate back on

  1. Kibitzer Curiae says:


    Re: “new player has entered the fight.”

    Let’s hope the new players have enough sense to sue Covid Commander-in-Chief Abbott (and perhaps General Paxton, too, as Harris County did) in Travis County.

    El Paso is in the 8th appellate district and trial courts there are thus bound by the Eighth Court of Appeals’ precedents. That would include AG Ken Paxton d/b/a The State of Texas v. El Paso, a majority opinion in a prior case involving a local COVID order ​that this Kibitzer will call a jurisprudential atrocity as long as the First Amendment has not been repealed or otherwise gutted. See State v. El Paso County, 618 SW 3d 812 (Tex.App. – El Paso, 2020, no pet.)(“a servant cannot have two masters”).


    Abbott’s Court didn’t get a chance to bless the holding of the El Paso COA and upgrade it to statewide precedent, but they do have that chance now. No doubt Appellate District Chief Alley’s opinion will resonate with them. You can read it here, including the spirited dissent by Justice Rodriguez:,44&as_ylo=2020

    This is supposed to be a “corrected opinion”. Don’t be fooled. It purports to give the governor (“the Master”) dictatorial powers vis-a-vis local local officials in a disaster, which he himself gets to declare unilaterally. This is this Kibitzer’s characterization, of course. Feel free to peruse the lenghty piece at leisure and reach your own conclusions. Or look at the minimum at the conclusion.


    Still, in the face of the Delta surge, it would be desirable to defer the inevitable, even if only for a short period of time. Another county-specific TRO — not to mention for the benefit of the good people of the barren border and hinterland — might at least save some lives that would otherwise be allowed to go to waste under Abbott’s virus-friendly executive order GA-38, if not immediately enjoined.

    Given that the supremes have told Paxton that they didn’t want him to aggregate additional TRO-whacking petitions into the pending mandamus case originating from Dallas (Tex. No. 21-0686), his litigators would presumably have to file a separate mandamus to challenge any additional TRO granted by a district judge in the state’s capital.


    Upon further reflection it would appear that the stay imposed yesterday by the First Court of Appeals on the TRO won by Fort Bend County is unfortunate as much as unwarranted.

    Paxton’s core complaint in the Dallas case – the one in which the Supremes issued their weekend stay — was that the TRO signed by Judge Tonya Parker was not only an impertinent affront to the sovereign, but also of statewide reach.

    True or not, the judge in the Fort Bend case – by contrast — expressly restrained the enforcement of Abbott’s mask-mandate ban to Fort Bend County only by adding limiting language by hand. So, that would make for an important point of distinction versus the original case in the SCOTX: The Fort Bend TRO’s much more limited geographic and jurisdictional scope.

    That said, a temporary injunction hearing in the Fort Bend case against Abbott is set for August 19, 2021. That’s only two days from now and much sooner than in Dallas (Aug. 24, 2021 there).


    APPELLATE LEVEL: In re Greg Abbott, No. 01-21-00440-CV (Tex.App.-Houston [1st Dist.] Aug. 16, 2021)(orig. proc.)(order granting stay in light of stay in Tex. 21-0686).

    TRIAL COURT LEVEL: Cause No. 21-DCV-286148, County of Fort Bend, Texas v. Greg Abbott in his Official Capacity as Governor of Texas, pending in the 434th Judicial District, Fort Bend County, Texas. (First Amended TRO signed The Honorable J. Christian Becerra on Aug. 12, 2021) [judge name from mandamus petition, not legible on the trial court order]

  2. Kibitzer Curiae says:


    Meanwhile, the internet has it that the personal responsibility for ingress-egress control didn’t work so well for the gubernatorial mansion and its most prominent occupant. See Tex. Gov’t Code § 418.018(c) (providing that “[t]he Governor may control ingress and egress to and from a disaster area and the movement of persons and occupancy of premises in the area.”

    Suffice it to point out succinctly that our now COVID-afflicted Crisis “Commander in Chief” relies on this statutory provision to shove it to local health and disaster authorities who would try to impede the ingress and egress of the virus as it travels in and out among student and adult bodies.


    As for the omnibus mandamus against Jan Soifer, here is a wrinkle:

    The three cases are not all pending in her court. In local court systems with multiple judicial districts, the presiding judges can switch benches and sit for each other. So, since a mandamus targets the judge that signed the objected-to order (called the respondent), shouldn’t the presiding judges of the other two courts be given an opportunity to reconsider the orders in question before they are mandamused for an offense to the Sovereign that they didn’t actually commit? That courtesy is afforded successor judges with a hold-over mandamus case filed against their predecessor that wasn’t yet resolved when they took office. Or will the mandamus procedure be modified for the occasion? In any event, it appears that AG has laid the groundwork by identifying Judge Soifer as the Respondent and listing all three trial courts right below, just in case.

    1. TRO in favor SOUTHERN CENTER FOR CHILD ADVOCACY (53rd Judicial District)
    2. TRO in favor of HARRIS COUNTY (345th Judicial District)
    3. TRO in favor of LA JOYA ISD, et al (353rd Judicial District)


    Also note that the AG justifies skipping the intermediate court of appeals – which would here be the Third in Austin — with reference to the statewide importance and the statewide scope of one of the TROs (Southern Center). But he made the same point about the TRO signed by Dallas Judge Tonya Parker, and he took that case to the Fifth Court of Appeals first before he came to the SCOTX, which is the normal procedure (unless urgent relief from the all-Republican court is imperative clear the way for the arrest of wayward Democrats; see Tex 21-0667).

  3. Kibitzer Curiae says:

    The Judicial Republicans have spoken: Round them up !

    And here is the answer to one of the questions posed above.

    If it’s not clear which district judge should be mandamused, the one that signed the order (judge on duty, ancillary judge) or the presiding judge of the court to which the case in which the TRO was granted is assigned, just issue the mandamus against the lower “court” without specifying the respondent.

    And de-gender the trial court judge to an “it” to make it suitably ambiguous as to who is actually being mandamussed.

    To wit:

    “The district court very clearly abused its discretion by issuing the TRO. The defendants [Abbott The State and the Speaker] have no adequate appellate remedy. The petition for writ of mandamus is conditionally granted, and the district court is directed to immediately rescind the TRO.”

    It’s too soon to offer constructive critique of the remainder of SCOTX opinion that clears the way for the arrest of the opposition party. Here it is for everyone to ponder:

    In re Abbott, No. 21-0667 (Tex. Aug. 17, 2021) (mandamus granted) (Op. by Blacklock with no dissent; no oral argument either).

  4. Pingback: Back to SCOTx for the mask mandate ban – Off the Kuff

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