Bexar mask mandate put on hold again

SCOTx has entered the chat, again.

The Texas Supreme Court has temporarily blocked San Antonio and Bexar County’s mask mandate, marking the latest update in a flurry of court battles over mask requirements statewide.

The decision comes after an appellate court earlier this month allowed the local mask mandate to stand, despite Gov. Greg Abbott’s executive order barring public entities from instituting such requirements. The new ruling is a win for the governor and Attorney General Ken Paxton, who had asked the high court earlier this week to step in and stop local officials.


In the order, the high court noted that the lawsuit does not consider whether people should wear masks or whether government officials should compel them to do so. Rather, the justices said, the case concerns which levels of government can make those decisions.

“The status quo, for many months, has been gubernatorial oversight of such decisions at both the state and local levels,” they wrote. “That status quo should remain in place while the court of appeals, and potentially this court, examine the parties’ merits arguments to determine whether plaintiffs have demonstrated a probable right to the relief sought.”

The court has yet to make a final decision on the matter, which could take weeks or months. Several similar but separate lawsuits, including two in Dallas and Houston, are also currently being litigated.

See here, here, and here for some background. This only affects the Bexar County case – the litigation in Harris and Dallas and other places have not yet been taken to the Supreme Court. It seems likely that they would go the same way, but as noted so far SCOTx is not inclined to let Abbott and Paxton jump the line on this, so they have to go through the process first. Also, this is a stay of the temporary restraining order, which means that if and when the judge in Bexar County issues a temporary injunction, as the judge in Dallas County just did, the SCOTx stay will become moot and Abbott and Paxton will have to go through the process again, to get another stay while that ruling is appealed. Isn’t this fun?

Also, as a friendly reminder, never believe a thing Ken Paxton says:

I know you didn’t need to be told that, but it never hurts to say. The Trib and the Current have more.

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4 Responses to Bexar mask mandate put on hold again

  1. Jeff N. says:

    What a childish tweet by Paxton. We could say that he is running to his GOP friends in Austin for protection from those Dem justices who are helping their Dem friends in San Antonio. But that would validate his view that this is only politics, when it’s not. It’s about public health and the safety of students. For God’s sake, when will we rid ourselves of his toxic politics?

  2. Kibitzer Curiae says:


    Re: “It’s about public health and the safety of students.”

    Yes, so right, but the forces are aligned against rational policymaking to promote public health AND against sensible judicial decisionmaking. Alas, it’s  not just Paxton, who either does not understand the finer points of the litigation procedure or engages in deliberate misinformation. The problem is much bigger, and includes — most notably — the Supremes’ eagerness to countenance the gubernatorial power grab and their penchant for eliminating evidence and expertise as key ingredients from the sausage-making. 

    If you carefully read the text of yesterday’s order from the Supremes, you will likely realize that they don’t care about the assessment of the pandemic condition on the ground by the local health authorities.

    As they mentally frame it, the status quo (which should more correctly be called the status quo ante, but that’s not the legal convention in Texas) is that the Governor has been ruling as an autocrat all along during the pandemic, and that this state of affairs (“status quo” at the time the controversy was taken to court) cannot be disturbed. In other words, there is no room for consideration of evidence indicating that the pandemic spread has worsened dramatically with the Delta variant, and is straining hospital capacity. The only thing that matters (to them) is the *legal* fact that a *declaration* of a statewide disaster was made that triggered the Governor’s extraordinary powers under the Texas Disaster Act, which he is using to issue executive orders. How he uses these extraordinary powers — and whether he abuses them to thwart a expertise-driven mitigation effort in local hotspots – is not for the judiciary to judge. For that involves policymaking by a political branch.

    In a nutshell, the Supremes’ rationale for using their own power to put a hold on to the temporary court orders that lower courts have issued against Abbott is this: The Governor has been ruling like a dictator all along after he first declared a disaster last year (the declaration is being renewed seriatim), and if we let these lower court rulings stand, he would no longer be able to rule like a dictator.

    This is not a reasoned argument. It’s more like a tautology in the service of a foregone conclusion. We must rule for the Governor because he is losing. He has no adequate remedy, so we must step in immediately and grant emergency relief to remove the restrictions imposed by lower courts on the Governor.

    Of course they eschew words such as dictator or autocrat. Not to mention King. Instead, they use a euphemism. The Governor has been “overseeing” the disaster response all along. According to his lawyers, he is now our Commander in Chief by virtue of his declaration of a statewide disaster. And as Commander in Chief he must be able to control everything. There must be a proper chain of command, and when the Commander commands his troops to throw away their assault rifles, the command must be blindly obeyed. Covid wins. 


    The “status quo” inquiry applies here because all court orders against the Governor’s Executive Order GA-38 that the Supremes gets a chance to weigh in on are either temporary restraining orders or temporary injunctions at this stage of the multiple-venue litigation game. Under established procedural law, the assessment of the “status quo” is one of the relevant criteria for grant or denial of temporary relief. And the consideration of the status quo then plays a role in the second-guessing by a higher court when asked to evaluate whether the lowly judge in the trial court has abused her discretion, or an intermediate court panel in its estimation of what happened at lower level of the pecking order, and whether they should intervene.


    The problem with the Supreme Court’s status quo analysis is that they exclude the evolving real-life pandemic conditions on the ground from their matter-of-law consideration a priori. To them, the epidemiological situation is of no moment because it’s unrelated to what the Governor has done in issuing his orders. It’s all about the law, never mind the facts. And the Governor’s orders have now the force of law, and therefore are the law. That’s what the Abbott-AG Alliance is pounding on. The rule of law now takes the form of one-man emergency rule by decree. And that includes the asserted power to suspend previously-enacted laws.

    Stated differently, what the Supremes consider relevant in their assessment of the “status quo”  is the legal “fait accompli” of the Governor’s ruling by executive orders under the Disaster Act, not the worsening of pandemic spread and the local officials’ effort to contain and mitigate it. These officials are being faulted for responding to these worsening conditions the best they know how, and the lower courts are being faulted for disturbing the status quo: The status quo of the Governor having prohibited a local response consistent with the recommendations and judgment of public health experts on the front lines.

    “Epidemiology is the study and analysis of the distribution, patterns and determinants of health and disease conditions in defined populations. It is a cornerstone of public health, and shapes policy decisions and evidence-based practice by identifying risk factors for disease and targets for preventive healthcare.” Wikipedia

    There is no room for epidemiology once the High Court declares that the Governor gets to rule by decree, and that his word is command “as a matter of law” no matter what happens on the ground in the large cities and their hospital systems.


    Note that they put the San Antonio/Bexar County temporary injunction on hold with reference to the same rationale they previously invoked when they put a stay on the temporary restraining order (TRO) from the same district judge.

    This makes no sense in light of the fact that they expressly stated in the previous stay order (relating to the TRO) that the temporary injunction hearing was not affected and could therefore go forward. The purpose of the temporary injunction hearing is for the trial court to receive evidence at a full-fledged hearing, evidence that may not have been presented in connection with the emergency grant of a TRO. Such as live witness testimony with opportunity for cross-examination, exhibits, statistics, and data charts.

    Now the Supremes are saying that the temporary injunction was wrongfully granted for the same reason the TRO was wrongfully granted, and that the reason is legal and therefore not a question to be decided based on evidence. The undisputed legal facts are the Governor’s disaster declarations and history of executive order issued under the Disaster Act. If it is merely a question of these legal facts, the “correct” answer did not require the taking of any evidence at the temporary injunction hearing. And no type or amount of evidence of pandemic conditions and insufficient EMS and hospital resources capacity in a particular jurisdiction could alter this genre of status-quo analysis.

    BOTTOM LINE: The Supremes’ rationale for the second stay order in the San Antonio/Bexar County v. Abbott litigation is consistent with their prior rationale, but does not square with their decision to let the evidentiary hearings go forward in the trial courts. So what is really going on here inside the chambers?  


    In addition to doing nothing to resolve the legal uncertainty over the validity or voidness of GA-38, the Supremes have further obfuscated the litigation dynamics on the procedural front.

    And they have again sown yet more confusion by merely announcing the stay in 21-0720 on their website, and not immediately releasing publicly the actual stay order that contains their warped rationale for granting Abbott’s request for a stay. AG Paxton tweeted a screenshot of the actual order, but grossly misrepresented its content and import to his lay readership. 

    Unsurprisingly, folks in the media and beyond incorrectly concluded that the SCOTX had put a local mask-mandate order out of operation, rather than a lower court order granting the City of San Antonio and Bexar County protection against enforcement of Abbott’s GA-38 as it pertains to mask mandates.

    Even Mr. Kuff keeps getting it wrong. This time, the Supremes’ stay did not relate to a temporary restraining order (that was in Round 1, Tex. No. 21-0687). Instead the Supremes suspended (technical term “stayed”) a temporary order of the San Antonio Court of Appeals that had reinstated the trial court’s temporary injunction against enforcement of the contested portion of GA-38 against the local governments as plaintiffs. This appellate case is an accelerated interlocutory appeal of the temporary injunction, not a restraining order. In this tweet, Paxton confused matters further by making it sound like he had sued them, rather than San Antonio and Bexar having sued the Governor.

    Trial court case: City of San Antonio and Bexar County v. Greg Abbott, in His Official Capacity as Governor of Texas. Cause No. 2021CI16133, pending in a district court in Bexar County, Texas.

    The interlocutory appeal of the temporary injunction remains pending in the Fourth Court of Appeals under appellat case number 04-21-00342-CV. Because this is an appeal, it is styled Greg Abbott, in his Official Capacity as Governor of Texas v. City of San Antonio and County of Bexar (rather than In re Greg Abbott, which is the case naming convention for a mandamus).

    Abbott’s lawyers have since filed an amended notice of appeal, claiming that the temporary injunction also implicitly denied their plea to the jurisdiction, which would provide an independent basis for an accelerated appeal. In the Fort Bend County case they got separate orders on their jurisdictional challenge and are appealing both of them under the same appellate case number: 01-21-00453-CV.

    In light of the Texas Supreme Court’s order of August 26, 2021, Justice Landau has signed an order denying Fort Bend County’s motion for Rule 29.3 relief, which requested reinstatement of the temporary injunction in favor of Fort Bend County.
    You can see that here:

    So, this is one immediate effect of yesterday’s SCOTX ruling in Tex. 21-0720, and it is not suprising because the two appeals are very similar, except that in the Fort Bend case there is no city as co-plaintiff. But neither the San Antonio case nor the Fort Bend County one that is now in the Houston Court of Appeals has a school district as a party.

  3. Adoile Turner III says:

    how many times we go see that same tired tweet.

  4. Kibitzer Curiae says:


    The El Paso Court of Appeals today issued an order on a mandamus petition with request for emergency relief brought by the Abbott-AG Alliance against a TRO granted in favor to the City of El Paso by a county court judge of El Paso County.

    GET THIS: This appellate court consists of only three members and each wrote a separate statement because they could agree on what to do.

    The narrowest majority concurrence boils down to a mixed decision that keeps parts of the TRO in place, but not others:


    The Governor’s emergency motion for temporary relief is GRANTED IN PART and
    DENIED IN PART. Enforcement of Section 3(b), 3(g), (4), and 5(a) of Executive Order GA38 is restrained by the TRO of this case to the extent it applies:

    1. Against any school district within El Paso County;
    2. Against the City of El Paso to the extent the City requires all employees to wear a mask or face covering;
    3. Against the City of El Paso to the extent the City requires all visitors to the City-owned or managed facilities to wear a mask or face covering. Such City-owned or managed facilities include senior citizen centers, recreational facilities, and City-operated public transportation.

    Enforcement of GA-38 is not restrained by the TRO of this case as to all its remaining sections.



    This Kibitzer Curiae may follow up with a more in-depth analysis later.

    In the interim, here is the current roster of case in the appellate courts:



    Abbott v. City of San Antonio and County of Bexar, No. 04-21-00342-CV, Fourth
    Court of Appeals, San Antonio (Appeal of Temp. Injunction in favor of City of SA and Bexary County)

    Abbott v. County of Fort Bend, No. 01-21-00453-CV, First Court of Appeals,
    Houston (Appeal of Temp. Inj. in favor of Fort Bend County and of Denial of Defendant’s Plea to the Jurisdiction)

    Governor Greg Abbott, Attorney General Ken Paxton, and The State of Texas
    v. Clay Jenkins, In His Official Capacity, No. 05-21-00733-CV, Fifth Court of Appeals, Dallas (Appeal of Temp. Inj. in favor of County Judge of Dallas County Clay Jenkins and Denial of Jurisdictional Pleas).


    In re Abbott, No. 08-21-00140-CV, Eight Court of Appeals, El Paso (City of El Paso) (partial grant, partial denial of emergency motion)
    In re Abbott, No. 05-21-00687-CV, Fifth Court of Appeals, Dallas (Dallas Cty Judge Jenkins) (denial with short opinion)
    In re Abbott, No. 04-21-00336-CV, Fourth Court of Appeals, San Antonio (SA, Bexar Cty) (summary denial)
    In re Abbott, No. 04-21-00349-CV, Fourth Court of Appeals, San Antonio (City of Laredo) (pending)
    In re Abbott, No. 01-21-00440-CV, First Court of Appeals, Houston (Fort Bend Cty)


    In re Abbott, No. 21-0720, Supreme Court of Texas (Rule 29.3 Order from 4th COA)(stay of temp. appellate order that reinstated trial court’s temporary injunction granted, pending appeal)
    In re Abbott, No. 21-0701, Supreme Court of Texas (3 TROs from Travis County)(stay and petition denied, go the COA first)
    In re Abbott, No. 21-0687, Supreme Court of Texas (TRO from San Antonio/Bexar County)(stay of TRO granted)
    In re Abbott, No. 21-0686, Supreme Court of Texas (TRO from Dallas County) (stay of TRO granted)

    Note that the mandamus petitions in 21-0686 and 21-0687 named the respective courts of appeals as respondents, rather than the trial courts/judges, but stayed the TROs, rather than any order by the appellate court). These SCOTX cases should be deemed moot because the TRO would have expired by their own terms and temporary injunction orders have since been entered). As of 8/27/2021 however, these SCOTX cases have not been dismissed.

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