Back to SCOTx for the mask mandate ban

Brace yourselves.

Following an unfavorable outcome at an appellate court, Gov. Greg Abbott asked the Texas Supreme Court to block the mask mandate in San Antonio and Bexar County.

A Bexar County district judge issued a temporary order on Aug. 16 allowing the city and county to require masks in city and county buildings and public schools. That order keeps the mask mandates in place until December, when a trial is set for the case. Attorney General Ken Paxton, on behalf of the state, appealed that order immediately to the 4th Court of Appeals, but a panel of judges upheld the local mask mandate last Thursday.

Paxton took that decision to the Texas Supreme Court on Monday, arguing in the filing that the 4th Court of Appeals’ ruling adds to the confusion over mask requirements in Texas, and asked for “urgent” action.

Paxton wrote that the 4th Court’s action “upends, rather than preserves, the status quo. The court of appeals’ decision thereby compounds the widespread confusion over mask mandates in Texas and frustrates the state’s ability to cohesively address the pandemic.”

The 4th Court of Appeals had judged keeping a local mask mandate maintains the status quo, as a previous temporary restraining order granted on Aug. 10 first put the mandates in place in San Antonio and Bexar County.

Paxton also argued that the state’s high court must take quick action because other cities and counties are being granted their own temporary orders allowing them to require masks despite the governor’s executive order prohibiting that.

See here and here for some background. The 4th Court of Appeals issued its order denying the request for a stay on the same day that the Supreme Court batted back the request it had received in the Harris County case. They could act quickly or they could sit on this and wait for action from other courts, because Lord knows there’s a ton of litigation out there.

Speaking of other litigation

A Dallas County judge today will decide whether Texas Gov. Greg Abbott has the authority to prevent local officials from imposing public health measures like mask mandates. It’s the latest in a dramatic and fast-moving court battle over the issue in the state.

At today’s hearing, the judge will likely hear evidence and testimony about the pandemic’s impact and the efficacy of mask-wearing to stop the spread of the COVID-19 delta variant as well as legal arguments about the Texas Disaster Act.

Dallas County Judge Clay Jenkins and his legal team, who are requesting a temporary injunction against Abbott’s order, say mask-wearing is the best way to save lives and slow the pandemic while they wait for people to get the vaccine. They’ll also argue that Jenkins, the county’s chief administrator who has emergency management powers, has the legal authority to issue executive orders to mandate such rules.

“We need protection for citizens in Dallas County, we need protection for the economy of Dallas County,” Charla Aldous, one of Jenkins’ attorneys, said at the hearing Tuesday morning. “The bottom line: We are here because Judge Jenkins wants to do his job.”

Abbott and Texas Attorney General Ken Paxton say the governor’s executive order, GA-38 — which bans mask mandates — is legal because the Texas Disaster Act gives him the power to ban Jenkins and other local officials like school districts from requiring masks.

Benjamin Dower, a lawyer with the Texas Attorney General’s Office, said the state would produce no witnesses and that the testimony from Jenkins’ witnesses weren’t relevant to temporary injunction hearing.

“None of this is actually relevant to the matter the court has to decide,” Dower said. “This is really a question of law, not fact.”

Judge Tonya Parker, of the 116th Civil District Court, will decide today whether to grant a temporary injunction barring the governor’s order. She previously granted a temporary restraining order doing just that.

The restraining order hearing was to prove whether there would be harm if Abbott’s ban were enforced. The temporary injunction hearing scheduled for this morning is to decide whether the decision should be more permanent. The judge will hear evidence on the matter, but Jenkins’ legal team must still prove immediate harm from Abbott’s order.

See here and here for some background; yes, all of this litigation is hard to keep track of. This post is likely to be already out of date by the time it publishes in the morning. I’ll update it then. Hold onto your butts in the meantime.

UPDATE: No news on the Dallas case yet. Maybe by this time tomorrow.

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3 Responses to Back to SCOTx for the mask mandate ban

  1. Kibitzer Curiae says:

    OUCH, NO

    Re: “The 4th Court of Appeals issued its order denying the request for a stay on the same day that the Supreme Court batted back the request it had received in the Harris County case.”

    For reasons explained yesterday – sigh – this is incorrect.

    The Fourth Court of Appeals (based in San Antonio) didn’t deny a stay, but *reinstated* the trial court’s temporary injunction order in the form of a temporary order of its own under appellate rule 29.3, pending resolution of the interlocutory appeal on the merits.

    See the order here:

    Appellate case number: 04-21-00342-CV (interlocutory appeal by Abbott)

    And the motion asking the intermediate appellate court to do so was filed by the plaintiffs/appellees, i.e. the City of San Antonio and Bexar County. There was no stay motion in that court in Round II (interlocutory appeal of temporary injunction). The AG instead took the position that the mere filing of the notice of interlocutory appeal on behalf of Governor Abbott in his official capacity stayed the effect of the temporary injunction entered by the district court. That’s why the City and the County filed the rule 29.3 motion.

    TRAP 29.3. Temporary Orders of Appellate Court

    When an appeal from an interlocutory order is
    perfected, the appellate court may make any
    temporary orders necessary to preserve the parties’
    rights until disposition of the appeal and may require
    appropriate security. But the appellate court must not
    suspend the trial court’s order if the appellant’s rights
    would be adequately protected by supersedeas or
    another order made under Rule 24.

    Having suffered setbacks in the lower courts – first the trial court, the intermediate court of appeals – the AG, through the Solicitor General, filed a mandamus petition against the Fourth Court of Appeals in the SCOTX, accompanied with an emergency motion to stay the effect of the order entered by the San Antonio Court of Appeals on 8/19/2021. This case was docketed as Tex. 21-0720.

    A response to that emergency motion is due at noon today, and then we shall see.

    The Supremes have likely already decided – at least tentatively – what to do and may be working on an opinion as we speak. But we could also see another summary disposition with a rule reference or some one-liner disposing of the emergency motion only, instead of an opinion explaining the Supremes’ thinking that is actually comprehensible to the plebes. Note that the response they requested only mentions the AG’s motion. (“The Supreme Court of Texas requests that real parties in interests’ [sic] file a response to the Relator’s Emergency Motion for Temporary Relief in the above-referenced case.”). So that suggests that they are not yet ready to decide the merits of the mandamus petition itself. But who knows? They are the state court for civil matters so they can do as they please.

    The respective legal positions of the parties in the mask-mandate dispute (or rather, their respective lawyers’) are well fleshed-out already and there will likely be nothing new in the response by City of San Antonio and Bexar County to the AG’s emergency motion, or the mandamus petition itself, for that matter. There may be another slew of friend-of-the court briefs and letters, most probably recycled versions of the ones filed in Tex. No. 21-0686 (Dallas TRO), No. 21-0687 (SA TRO), and No. 21-0701 (TRO in favor of Harris County, Southern Center, and School Districts).

    Note that in the San Antonio mask-mandate dispute, the constitutionality of the Disaster Act is also being challenged, but the current mandamus in the SCOTX is not an appeal, but a mandamus targeting the Fourth Court of Appeals (well, in effect, the panel of three justices on the case in question). That could make a difference because the standard of review is abuse of discretion in granting TRAP 29.3 relief, rather than the temporary injunction standard, at least formally. The latter, of course, is nested in the question whether the grant of interim temporary relief on appeal was proper.

    In practice, however, this won’t constrain the SCOTX. They could answer the dispositive statutory construction question(s) concerning the powers of the Governor under the Texas Disaster Act (less likely the constitutional ones) while employing the abuse-of-discretion analysis.

    That’s what they did most recently in the mandamus case against the TRO obtained by the Lege-Dems to protect them from “civil” arrest at the instance of House Speaker Phelan. In that case the Supremes first issued a stay against the trial court TRO (thereby depriving it of its protective force) and shortly thereafter decided the case in the Governor’s and the Speaker’s favor without bothering to hold oral argument.

    PS: If you have a different take, kindly consider sahring it for the benefit of all. Unlike many other cases taken up by the SCOTX, the legal wrangling over mask mandates actually affects lots of Texans, and everyone knows that the state Supremes will have the last word.

  2. Kibitzer Curiae says:



    District Judge Tonya Parker has granted temporary injunction, siding with County Judge Jenkins against Abbott. Expect interlocutory appeal to the Fifth Court of Appeals in Dallas. This will moot the pending mandamus Tex. 21-0686 in the Texas Supreme Court in which a stay was granted as to the TRO, but not the case in the trial court. (pay-walled story)


    Temporary Injunction in favor of Fort Bend County against Abbott is now on interlocutory appeal in the First Court of Appeals in Houston. Fort Bend County has filed a rule 29.3 motion to preserve (reinstate) trial court order pending appeal, following the example of Bexar County and City of San Antonio in the Fourth Court of Appeals. Appellate case number: 01-21-00453-CV; Governor Greg Abbott in his official capacity as the Governor of Texas v. County of Fort Bend, Texas. Trial Court Cause Number: 21-DCV-286148 (434th District Court, Fort Bend County).


    City of El Paso (not County) obtained TRO against Abbott, which AG is challenging on behalf of Governor in the Eight Court of Appeals with a petition for writ of mandamus and an accompanying emergency motion to stay the TRO. Court of Appeals Number: 08-21-00140-CV; In Re: Greg Abbott, in his Official Capacity as Governor of the State of Texas. Trial Court Case Number: 2021DCV2805 (County Court in El Paso County).

    SAN ANTONIO (City and County)

    City and Bexar County filed their joint response to the AG’s emergency motion for temporary stay of the 4th COA rule 29.3 Temporary Order (which revived the trial court injuction) in the Supreme Court shortly before noon today. Pending under Tex. 21-0720 (see prior Kibitzer commentary above).

  3. Kibitzer Curiae says:


    New: “The Texas Supreme Court has temporarily blocked an appellate court ruling that upheld San Antonio & Bexar County’s mask mandate. The high court still has to issue a final ruling on the case, which it is considering on a @KenPaxtonTX  appeal.” (8/25/2021)

    What did actually happen:

    The Supremes stayed the effect of the San Antonio Court of Appeals’ rule 29.3 order that had reinstated the trial court’s temporary injunction against enforcement of the mask-mandate portions of GA-38.

    There was no express ruling on the legality of the public health or masking orders of San Antonio or Bexar County (or their joint Public Health Authority), only on the enforceability of Abbott’s GA-38 against them. This is because the local governmental entities brought the suit and the request for injunctive relief, rather than AG/Abbott/State suing them to enforce GA-38 against them and invalidated their order (at best, that’s a counterclaim). 

    So, the effect of today’s SCOTX ruling is that the protection against the enforcement of Abbott’s order (contained in the Bexar County district court’s temporary injunction order as revived by the Fourth Court of Appeals under its own authority to grant interim relief under TRAP 29.3) has again been removed temporarily; — suspended, if you will.

    To which one might retort: So what?


    These plaintiffs/appellees/real-parties-in-interest (in trial court, appellate court, and SCOTX, respectively) are merely back to square 1. Same position in effect as if they would be in had not filed suit. Same position as other cities and/or counties that did not sue Abbott to challenge GA-38, but may have gone ahead with masking policies nonetheless. With the exception that the litigation brought by SA and Bexar County is still ongoing in the Fourth Court of Appeals.

    The legal limbo as to the validity of GA-38 and the contrary local orders, however, remains. If GA-38 is void as ultra vires or even unconstitutional under the separations-of-powers and non-delegation provisions of the Texas Constitution, then the local officials are not violating it because you can’t violate a void order. It simply has no legal force or effect. The problem is that nobody knows for sure. We can and do expect that the Texas Supreme Court will eventually decide the matter, and do so with retroactive effect (no matter how coy and tentative they want to come across as of now).

    In the meantime, however, what matters is what the local governments actually DO.


    The other quality-journalism error concerns the appeal. A mandamus against a judge or appellate court is not an appeal. The San Antonio/Bexar County appeal remains pending in the Fourth Court of Appeals, not the Texas Supreme Court.

    In connection with the stay order, the SCOTX says that the petition for mandamus against the Fourth COA remains pending (in Tex. 21-0720). Arguably, however, it is effectively moot already because the stay order gives the Abbott-AG Alliance all the relief they could get at this juncture. They didn’t seek as stay of the pending 4thCOA appeal itself, only the rule 29.3 order issued on an emergency basis by that court. Also note that the Fourth Court of Appeals was named as the respondent in the supreme court mandamus petition. Once they have decided the appeal on the merits, the next step would be a regular further appeal from the COA judgment and opinion (assuming it affirmes the trial court injunction) to the SCOTX by petition for review.  

    The only other thing that could have happened in Tex. 21-0720, and could still happen in theory, is an indication by the Supremes — in the form of a more expansive holding, i.e. a reasoned opinion — about how they view the merits of the legal claims. They chose not do so once more, instead backing up the Governor with a ruling that is only procedural, and might seem arcane to the lay audience.

    That said, the procedural issue here is very important because of the timing. The Supremes would have you believe it’s all about legal issues (and an inter-governmental power struggle, which is true). On the ground, however, what matters is what local governments actually do. It’s not just about words and lexical sophistry, and what precedent exists for what or needs to be extemporized in ex-machina fashion for the occasion. 

    No! – Every single day that proactive pandemic-fighting measures are in place and are being implemented on the ground  can save lives. All while the wars of words are raging in the lofty legal realm and make brains emit proverbial smoke. 


    This Kibitzer would expect school districts, cities, and counties (other than perhaps SA, and Bexar) to conclude that the procedural stay order issued in Tex. 21-0720 today doesn’t order them to do anything — or not to do anything — because they are not parties/parties in interest to that dispute at any of the three levels of judicial hierarchy.

    Nor does the SCOTX order address the merits of the challenges to GA-38, not to mention decide them one way or the other on a statewide basis in a binding precedent-setting opinion. 

    They backed up their man, but otherwise played it coy and resolved nothing of substance.

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