Abbott admits he can’t enforce his mask mandate ban

So what are we even doing here? Just make your mandate and move on.

Gov. Greg Abbott has been embroiled in court battles with Texas cities, counties and public schools that have defied his ban on local mask mandates. But in the urban areas where those battles are being waged, the local officials Abbott needs to enforce his ban aren’t playing ball.

Even as Abbott and Attorney General Ken Paxton vow to punish local government and school district officials who flout the governor’s executive order, they conceded in court documents that they actually have no power to enforce the ban.

“Neither Governor Abbott nor Attorney General Paxton will be enforcing” the order, Paxton argued in a Monday court filing in Dallas.

Since the pandemic began, Abbott has issued a flurry of executive orders, the most prominent of which have limited cities and counties from enacting measures intended to slow the spread of COVID-19, like mask mandates and occupancy restrictions on businesses like restaurants and retailers.

Cities, counties and school districts in the state’s major urban areas have responded with a flood of lawsuits challenging Abbott’s executive order prohibiting them from enacting mask mandates amid a surge of COVID-19 cases and hospitalizations.

In a bid to convince judges to toss out those legal challenges, Abbott and Paxton claim in recent court filings that they’re not the right target because it’s up to local prosecutors to enforce Abbott’s orders.

“The Governor’s executive orders, having the full force and effect of law, are enforceable by state and local law enforcement,” spokesperson Renae Eze said in a statement.

But in the state’s urban counties, those district attorneys are mostly Democrats who are unlikely to sue fellow local officials for violating Abbott’s order banning mask mandates.

“[Abbott is] saying, ‘Well, it’s not enforceable, only the DA can do it,” said Randall Erben, an adjunct law professor at the University of Texas at Austin. “Well, the DAs in Travis, Harris and Dallas are not going to prosecute anybody for violation of the executive order.”

In the state’s most populous county, Harris County District Attorney Kim Ogg doesn’t anticipate enforcing Abbott’s executive order because it’s not a criminal matter, a spokesperson said.

Abbott’s legal argument — tucked into court documents in at least five lawsuits challenging his order — has prompted some lawyers representing local governments and public schools to call out the governor and Paxton for saying one thing in public and another in the courtroom.

Yeah, Harris County Attorney Christian Menefee was one of those people. This is, as the article notes later on, one hundred percent Abbott and Paxton beating their chests for the rubes. Again, never believe a word Ken Paxton says.

Two points to consider. One is that while those of us fortunate enough to live in a sufficiently enlightened county can now put whatever pressure we want on our mayors and county judges and school boards to move forward with their mask mandates, since there won’t be any criminal consequences for them and in that sense all of the ongoing litigation doesn’t really matter. But if your city or school district is not in such a place, then you really do care about what the Supreme Court will ultimately say, because your Mayor or Superintendent will be in the crosshairs otherwise. Even with a favorable SCOTx ruling, Abbott has ratcheted up the political pressure enough that it may not be worth it to them regardless. The harm they’re doing for the sake of winning the support of a depraved bunch of Republican primary voters is incalculable.

And two, this is now another example of Abbott and Paxton making “you can’t sue me” a key point of their governance. The “heartbeat” abortion ban atrocity is perhaps the highest-profile example, but Paxton’s claims that he’s exempt from the state’s whistleblower laws because he’s not a “public employee” are another, and it’s just as pernicious. It’s all about wielding power without responsibility or constraint. If trends hold to form, look for bills introduced by Republicans in the next Lege to include clauses about why the state can’t be sued by anyone who claims to have been harmed. At least, that will be the case until we have Democrats in the executive offices. At that point, it will be game on for limiting what they can do. But for now, we’re not supposed to sue them for anything because…well, just because.

Related Posts:

This entry was posted in Legal matters and tagged , , , , , , , , , , , . Bookmark the permalink.

One Response to Abbott admits he can’t enforce his mask mandate ban

  1. policywonqueria says:


    Re: “If trends hold to form, look for bills introduced by Republicans in the next Lege to include clauses about why the state can’t be sued by anyone who claims to have been harmed.”

    They don’t have to. Their judicial brethren did for them. Long ago.

    Which just goes to show that even the intelligentsia (minus the legal profession) has no clue what the state supreme court has been up to ever since they took over the state court of last resort of all matters civil more than two decades ago.


    The mantra words here are SOVEREIGN IMMUNITY and GOVERNMENTAL IMMUNITY. The former bars lawsuits as a jurisdictional matter against the state, its officers, and agencies; the latter against subsidiary governmental units such as local governments and special districts. And if that doesn’t do the trick, there is OFFICIAL IMMUNITY, an affirmative defense assertable by way of motion for summary judgment. Assistant AGs from the OAG’s General Litigation Division routinely assert these defenses (and more) when they respond to lawsuits against state agencies, officials, or employees.  


    At some point the Supremes ran out of ways to protect governmental actors from lawsuits, so they went above and beyond the original mission and turned judicial proceedings privilege (a common-law doctrine that bars defamation claims based on what has been said in court) into a special-interest civil tort immunity for an entire service industry. That doctrine is now known as ATTORNEY IMMUNITY, and law firms get to enjoy it too. You heard that right: Our Common-Law-Makers have exempted Texas attorneys from the civil tort system (except for claims by clients, which would take the form of breach of contract or legal malpractice/negligence).

    But you have to give it to them. It’s good politics. Think of if. Who is the core constituency of the Court but the state’s legal profession? And as an attorney, wouldn’t you want to be immune from lawsuits too, just in case you should slip up and commit a little bit of fraud here and there, some evidence destruction or forgery now and then, or a bit of perjury on occasion when it’s helpful. All for good of the client, of course. Zealous representation, you know.

    The Supremes have in essence set up a judicially-sanctioned and therefore entirely legal protection racket for the benefit of the industry for which they are supposed to act as top regulator. Instead of protecting the public from misconduct by wayward Texas attorneys, they have endeavored to employ their ability to fashion and burnish common-law doctrines — and their power to impose them as binding precedent — to protect misbehaving attorneys from lawsuits by members of the public through a grant of blanket immunity.

    In the Cantey Hanger case, the Supremes expressly rejected the argument that attorney immunity cannot be allowed to extend to fraudulent and other intentional conduct committed by the attorney in the course of representing a client. Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477 (Tex. 2015)(attorney is immune from liability to nonclients for conduct within the scope of his representation of his clients even if conduct is alleged to be fraudulent or otherwise wrongful). Also see  Youngkin v. Hines, 546 S.W.3d 675 (Tex. 2018) (attorney entitled to dismissal of suit against him based on attorney immunity and award of attorney’s fees against the plaintiff).

    If some Texas attorneys get too far out of line, there is always the disciplinary system run by the State Bar, which is a judicial agency overseen by the Texas Supreme Court (rather than merely an association). Not to mention that the Supremes have the last word in disciplinary cases, i.e. suspension and disbarment. So, by depriving the public of the right to take Texas attorneys to court by bestowing civil tort immunity upon them, the Supremes didn’t give up their own ability to control them.  

    BOTTOM LINE: No need for legislative Republicans to pass bills to bestow immunity. The judicial Republicans have already enacted common-law doctrine to make sure state actors cannot be held accountable. The King can do no wrong, nor his minions. And they have seen fit to extend immunity and impunity to the officers-of-the-court corps, too.

    Time to get back to the red meat menu. Throw the GOP primary voters some junks to keep the feeding frenzy going.  

Comments are closed.