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Galveston ISD mask mandate remains, Round Rock gets halted

Good.

A Galveston County judge Thursday denied an attempt by Attorney General Ken Paxton to stop Galveston ISD from requiring masks, according to a court document.

Judge Kerry Neves ruled against Texas’ request for a temporary restraining order on mask mandates in the district.

According to court documents, a hearing on the matter is set for Sept. 28.

See here for the background. That’s the whole Chron story – the Galveston County News covered this as well, but they’re behind a paywall so I can’t see it. Paxton scored an initial win against Paris ISD in his second round of lawsuits, though that happened without Paris ISD being in the courtroom. It would seem he used that same tactic in Round Rock.

A state district judge in Williamson County has temporarily blocked the Round Rock school district from enforcing its mask mandate, according to Texas Attorney General Ken Paxton, who sued the school district.

In a tweet Thursday night, Paxton’s office declared “Another WIN!” in its legal fight against school districts that have defied Gov. Greg Abbott’s executive orders banning schools from requiring masks. Paxton sued Round Rock along with Elgin and other school districts with mask mandates last Friday.

[…]

In a statement, Round Rock school district leaders said they had not been officially served or notified by Paxton’s office of the order. District officials also said they were not given the opportunity attend any court proceedings to oppose the order, but they said they would “comply with any lawfully issued court order.”

“We will also use all proper and available legal proceedings to challenge this order and vigorously defend its long-established lawful authority to provide a safe and healthy learning environment for Round Rock ISD students and staff, including during this pandemic,” the statement said. “The district continues to strongly encourage and recommend the use of masks in accordance with guidance from our local health authorities.”

I totally get Paxton playing dirty, but what is up with these judges letting it happen? Do they have no responsibility to at least inquire why there’s no opposing counsel? I’m puzzled, to say the least.

As for the other affected districts, I did a quick Google News search and didn’t see any news for them. I would assume there will be more rulings in the coming days, but for now as far as I can tell this is where we are.

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6 Comments

  1. policywonqueria says:

    THE FANCY WORD IS “EX PARTE”

    Re: “I totally get Paxton playing dirty, but what is up with these judges letting it happen?”

    Might ask the same of the Travis County judges that hand out courtesy TROs to Planned Parenthood and other abortion providers/advocates and helpers.

    THE ABORTION-TRO-ON-DEMAND LIST

    Planned Parenthood of Greater Texas Surgical Health Services, et al. v. Texas Right to Life, et al.,
    Cause No. D-1-GN-21-004632, 53rd Judicial District Court of Travis County

    Doe v. Texas, et al., Cause No. D-1-GN-21-004193, 53rd Judicial District Court of Travis County

    The West Fund v. Texas, et al.,
    Cause No. D-1-GN-21-004648, 261st Judicial District Court of Travis County

    Frontera Fund v. Texas, et al.,
    Cause No. D-1-GN-21-004846, 53rd Judicial District Court of Travis County

    Faulkner v. Texas, et al.,
    Cause No. D-1-GN-21-004189, 250th Judicial District Court of Travis County

    Van Stean v. Texas, et al.,
    Cause No. D-1-GN-21-004179, 98th Judicial District Court of Travis County

    The Bridge Collective v. Texas, et al.,
    Cause No. D-1-GN-21-004303, 126th Judicial District Court of Travis County

    Tuegel v. Texas, et al., Cause No. D-1-GN-21-004316, 261st Judicial District Court of Travis County

    Moayedi v. Texas, et al.,
    Cause No. D-1-GN-21-004489, 98th Judicial District Court of Travis County

    North Texas Equal Access Fund v. Texas, et al.,
    Cause No. D-1-GN-21-004503, 455th Judicial District Court of Travis County

    Fund Texas Choice v. Texas, et al.,
    Cause No. D-1-GN-21-004606, 98th Judicial District Court of Travis County

    The Lilith Fund for Reproductive Equity v. Texas, et al.,
    Cause No. D-1-GN-21-004504, 53rd Judicial District Court of Travis County

    Clinic Access Support Network v. Texas, et al.,
    Cause No. D-1-GN-21-004544, 201st Judicial District Court of Travis County

    The Afiya Center v. Texas, et al.,
    Cause No. D-1-GN-21-004605, 455th Judicial District Court of Travis County

    —-

    Substitute for Ken Paxton (who is on the defending side in most of these actions and will no doubt soon file immunity pleas, if he hasn’t already) the following:

    Jennifer R. Ecklund, Elizabeth G. Myers, and Kamran Anwar, the anti-pro-life litigation entrepeneurs.

    PROBLEM ANALYSIS: WHAT CAUSES PREGNANCY?

    We at policywonqueria don’t pledge alliagence to either side. Based on a more comprehensive view of the causal chain than typically receives lawyerly attention in litigatoin, we favor pregnancy prevention (planned avoidance of most “needs” for an abortion) over deliberately induced or surgically inflicted fetal demise. And it’s also safer than abortion. Barrier-methods, for example, not to mention the matter of sexual gratification alternatives that do not involve intravaginal dispersal of live sperm that might meet up with a fertile ovum. We also favor sex education, including distribution of contraceptives in public schools. If abortion is harder to get in Texas, it will be all the more important to focus on effective contraceptive practices in intimate heterosexual behavior (in addition to good sexual health behavior in general).

    WHO IS PROPER OPPOSING PARTY FOR VINDICATION OF RIGHT TO THE “PROCEDURE”

    That said about they obvious ways to eliminate the “need” for a large share of the volume of abortions performed in Texas (if not most), if some “pregnant persons” were denied abortions after undergoing the heartbeat screening testing, as reported in the media, why don’t they sue the abortion doc or the clinics for denial of service?

    The pro-choice side and their lawyers and law professors are adamant that there is a federal legal right to abortion (with justification, in light of Roe and Casey), so there would not only be standing (I wanted/needed the service and was denied), but also a plausible legal argument that the right that was denied is enforceable in a court of law. President Biden even characterizes the right to an abortion as a national sovereign interest.

    And the doctor would be acting under color of state law (the pertinent law being the Texas Heartbeat Act p/k/a S.B.8) by carrying out the legislative will of the GOP majorities that enacted S.B.8, collectively d/b/a The State of Texas. By denying the requested abortion.

    Ergo, state action. The abortion doc is acting as an agent of the State of Texas by no longer doing what he previously did on a daily basis. All because of SB8.

    Texas Right to Life, by contrast, isn’t in the abortion-performing business, and hasn’t even arguably acted as an agent of the state since they havent’ filed any private enforcement actions, and are not court-restrained from doing so.

    So why don’t Jennifer Ecklund et al, not sue abortion docs and clinics, instead of taking them on as clients to get ex parte TROs against entities and people that are not in the abortion business?

  2. policywonqueria says:

    PLANNED PARENTHOOD VS. TEXAS RIGHT TO LIFE: CASE STATUS

    CORRECTION: Should have said … and are NOW court-restrained from doing so.

    The Agreed Order on Application for Temporary Injunction is here:
    http://cdn.cnn.com/cnn/2021/images/09/13/texas.order.pdf
    (250th District Court, Judge Karin Crump)

    Here is the Texas TRO rule, including the ex parte provision:

    TEX. R. CIV. PROC.: RULE 680. TEMPORARY RESTRAINING ORDER

    No temporary restraining order shall be granted without notice to the adverse party unless it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before notice can be served and a hearing had thereon.
    Every temporary restraining order granted without notice shall be endorsed
    with the date and hour of issuance; shall be filed forthwith in the clerk’s office and entered of record; shall define the injury and state why it is irreparable and why the order was granted without notice; and shall expire by its terms within such time after signing, not to exceed fourteen days, as the court fixes, unless within the time so fixed the order, for good cause shown, is extended for a like period or unless the party against whom the order is directed consents that it may be extended for a longer period. The reasons for the extension shall be entered of record. No more than one extension may be granted unless subsequent extensions are unopposed.

    In case a temporary restraining order is granted without notice, the application for a temporary injunction shall be set down for hearing at the earliest possible date and takes precedence of all matters except older matters of the same character; and when the application comes on for hearing the party who obtained the temporary restraining order shall proceed with the application for a temporary injunction and, if he does not do so, the court shall dissolve the temporary restraining order. On two days’ notice to the party who obtained the temporary restraining order without notice or on such shorter notice to that party as the court may prescribe, the adverse party may appear and move its dissolution or modification and in that event the court shall proceed to hear and determine such motion as expeditiously as the ends of justice require.

    Every restraining order shall include an order setting a certain date for hearing on the temporary or permanent injunction sought.

    RULE 681. TEMPORARY INJUNCTIONS: NOTICE

    No temporary injunction shall be issued without notice to the adverse party.

  3. Jason Hochman says:

    26 days and counting……

  4. David Fagan says:

    26 days and counting………

  5. mollusk says:

    Considering and issuing a TRO with only one side appearing is allowed by the rules. That’s offset by two things: 1 – a TRO is supposed to preserve the status quo, and 2 – they only last for 14 days at most unless extended.

    That said, in my view asking a court for ex parte relief when you know who represents your opponent is right at if not over the line for acceptable behavior. It’s unquestionably sleazy. In Harris County (and some others) it’s part of the local rules that your opponent has to be there for a TRO hearing if it’s at all possible.

  6. Kibitzer Curiae says:

    TRO GAMBITS & PICKING YOUR JUDGE

    It’s also offset by the party that was restrained in their absence having the option to move to dissolve almost immediately, but if no judge – duty judge or otherwise — will give you a hearing because they are too busy in a particular county, you may be out of luck (short of going to the SCOTX, if you are a Republican with a valid politico-legal grievance against the opposition party). See, e.g., In re GA, No. 21-0667 (Tex. Aug. 12, 2021)(Mandamus petition granted pursuant to TRAP 52.8(c)).

    Point being: Just because there are rules about how things are supposed to go, it doesnt’ mean that things actually go that way, or can’t be bent a little or manuvered around.

    Also, in Travis County, plaintiffs moving for TRO are supposed to fill out this form and submit it. See here:

    https://www.traviscountytx.gov/images/courts/Docs/Sample_TRO_Certification_Form.pdf

    Would be interesting to find out whether that form was filed, and what info it might contain.

    Whether it’s “playing dirty” (Kuff) is a matter of opinion, and who is doing it. Goose-gander sort’a thing. ​

    You could also call it clever lawyering: Tactical maneuvering.

    Same for forum shopping. Whoever files first gets to pick the venue, and once the action is on file, you will know which judge you drew in counties that don’t use centralized docket systems as do Bexar and Travis. Then you can adjust your litigation strategy accordingly. Let’s say you file in Harris County and you drew a judge known as “too busy” to actually rule on pending motions. You might conclude it’s not worth it and try to settle, or just put the case on the backburner and settle in for the long haul. And if everything else fails, and the amount in controversy merits it, you can get ready for a mandamus after – let’s say 6 months of no rulings on pending motions.

    And a really clever lawyers may even be able to arrange for the transfer of a case out of an undesirable court, such as when a similar case is already on file (or try to). And if you don’t like the random draw, well, there may be a more amenable alternative permissible venue. So, nonsuit, hold the citation or process server if already en route, and — voila — a new but coterminous iteration of the lawsuit in a friendlier county.

    As as for picking a good judge for a TRO, if your claim of an emergency is — shall we say — flexible on the timing dimension, you may be able to figure out who will sit as duty or ancillary judge on a particular day, and not on the day after. So, that may help too.

    All of which is not to say that these various tactics don’t potentially raise ethics concerns.