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Are we about to get more COVID in Houston?

We could be.

New data from the Texas Medical Center shows COVID-19 cases have leveled off over the past week, but some trends suggest the Greater Houston area could be on the verge of seeing higher virus spread.

TMC hospitals reported an average of 351 new cases per day during the week of April 18, the same number it reported during the previous seven-day period. The number of new cases does not include anyone who used an at-home test and did not report a positive result.

Those numbers represent a significant decline from last month, when the hospitals were reporting an average of 2,592 new cases per day.

However, the effective reproduction rate – or the average number of people who will be infected by someone with COVID – increased to 1.0 last week, up from 0.82 one week earlier. The rate essentially measures how well collective behaviors like wearing masks and social distancing are slowing the spread of the virus, with any rate higher than 1.0 meaning that spread is increasing.

The amount of virus being detected at the city of Houston’s wastewater treatment plants has also increased to the highest rate since Feb. 7, according to data from the Houston Health Department. Twenty-one of the city’s 39 wastewater treatment plants saw an increase in viral load in samples that were collected and analyzed April 18. By comparison, 16 plants saw in increase in samples collected and analyzed one week earlier.

The TMC’s weekly update also shows new hospitalizations have increased to an average of 59 admissions per day during the week of April 18, up from 42 the week before. TMC hospitals admitted an average of 89 new patients per day last month.

The data isn’t strongly conclusive, but it’s also early in what could be a trend, and as we know with this virus once you really start to see an uptick, it’s already too late. On the other hand, lots of people have COVID antibodies now, and that plus the number of vaxxed people who haven’t had COVID is probably enough to mitigate any crazy spread, or at least to make it less harmful, at this time. But of course there are still plenty of high-risk people out there, and lots of kids haven’t been vaxxed, and no one wants to get even a mild case of COVID. So, you know, stay cautious. You can still wear a mask even if you don’t have to, and you can get that second booster if you’re eligible. It’s never a bad idea to minimize your exposure to this thing. Stace has more.

Biden administration to appeal airplane mask mandate order

Good.

U.S. President Joe Biden’s administration said on Tuesday it would appeal a judge’s ruling ending a mask mandate on airplanes if public health officials deem it necessary to stem the spread of COVID-19.

The Centers for Disease Control and Prevention, to whom the administration was deferring, said that it would continue to study whether the mandates were still needed. The mandates apply to planes, trains and other public transportation and, prior to Monday’s ruling, had been due to expire on May 3.

“We will continue to assess the need for a mask requirement in those settings, based on several factors, including the U.S. COVID-19 community levels, risk of circulating and novel variants, and trends in cases and disease severity,” a CDC spokesperson said in a statement on Tuesday.

The Justice Department said it would appeal Monday’s ruling by U.S. District Judge Kathryn Kimball Mizelle that the 14-month-old directive was unlawful, if the CDC determined the mandate was needed to protect public health.

See here for the background. For what it’s worth, the public still supports masking on airplanes. Airlines and their employees have not been very fond of it, which is understandable given the amount of petulance and rage they have had to deal with from unhinged mask-haters. Maybe they shouldn’t be so quick to let any of those folks back on board, but that’s just my opinion. It’s true that airplanes have excellent filtration and ventilation, which make them pretty safe from a COVID transmission perspective, though not entirely. And getting on and off the airplane, not to mention being in the airport, is much riskier. Masking up is still your best bet. Slate and Vox have more.

Mask mandate lifted for planes and trains

And other forms of mass transportation.

The Biden administration will no longer enforce a U.S. mask mandate on public transportation, after a federal judge in Florida on Monday ruled that the 14-month-old directive was unlawful, overturning a key White House effort to reduce the spread of COVID-19.

Soon after the announcement, all major carriers including American Airlines AAL.O, United Airlines UAL.O and Delta Air Lines DAL.N, as well as national train line Amtrak relaxed the restrictions effective immediately. Read full story

Last week, U.S. health officials had extended the mandate to May 3 requiring travelers to wear masks on airplanes, trains, and in taxis, ride-share vehicles or transit hubs, saying they needed time to assess the impact of a recent rise in COVID-19 cases caused by the airborne coronavirus. Read full story

Industry groups and Republican lawmakers balked and wanted the administration to end the 14-month-old mask mandate permanently.

The ruling by U.S. District Judge Kathryn Kimball Mizelle, an appointee of President Donald Trump, came in a lawsuit filed last year in Tampa, Florida, by a group called the Health Freedom Defense Fund. It follows a string of rulings against Biden administration directives to fight the infectious disease that has killed nearly one million Americans, including vaccine or testmandates for employers.

Judge Mizelle said the U.S. Centers for Disease Control and Prevention (CDC) had exceeded its authority with the mandate, had not sought public comment and did not adequately explain its decisions.

A U.S. administration official said while the agencies were assessing potential next steps, the court’s decision meant CDC’s public transportation masking order was no longer in effect. The administration could still opt to appeal the order or seek an emergency delay in the order’s enforcement.

“Therefore, TSA will not enforce its Security Directives and Emergency Amendment requiring mask use on public transportation and transportation hubs at this time,” the official said in a statement.

“CDC recommends that people continue to wear masks in indoor public transportation settings.”

The ruling came down on Monday, issued by one of the lesser Trump judges, which is honestly saying something. For us in Houston, this also means that masking at IAH and Hobby airports and on Metro buses and trains is no longer required. It continues to be “encouraged”, which means that some vaccinated people and immunocompromised people who can’t avoid being in that situation will wear them. We’ll be flying a couple of times this summer, including the trip to take daughter #1 to college, and we’ll have our KN-95s on because honestly, why wouldn’t we? It is what it is at this point. Protect yourself and hope for the best.

New variants being detected

Got to keep an eye on that.

Two new omicron subvariants that health officials say are contributing to a COVID uptick in New York State have been identified in Houston, according to researchers at Houston Methodist.

Genome sequencing efforts within the hospital system have detected 83 cases of BA.2.12 and three cases of BA.2.12.1 — two sub-lineages of the dominant variant BA.2 — since the start of the year.

Local case numbers, however, are sitting at their lowest point in nearly a year, according to the Harris County Public Health COVID dashboard, which reports an average of 20 new cases per 100,000 people over the last seven days. That number was as high as 1,256 in mid-January, during the height of the omicron surge.

It’s a different story in New York, which has seen a 70 percent increase in new cases over the two weeks, from a daily average of 3,231 on March 13 to 5,467 on Thursday, according to the New York Times virus tracker.

[…]

Houston wastewater surveillance data show an increasing viral load at a growing number of the city’s treatment plants as of April 4, when samples were last collected.

The city’s wastewater dashboard shows 14 out of 39 total wastewater treatment plants experiencing an increase from the week before, compared to eight on March 28.

The wastewater data is here. As of April 4, the virus level was at 38% of where it was on July 6, 2020, which is the date when this collection project started and is used as the baseline. We’ll have to keep an eye on that of course, but we also have to consider infections versus hospitalizations and deaths. It makes sense to wear a mask in most indoor settings – I do, and plan to continue doing so for the foreseeable future – but it’s not clear yet that we need to do more than that. Other than get vaxxed and boosted, of course, which if you haven’t by now I don’t know what to say to you.

We don’t have to treat political performance art as news

This is a story in the Chronicle about one of our Senators, who made some whiny petulant statements on social media about a celebrity best known for work in the 1980s who had posted about getting his second booster but is still wearing a mask in public because COVID is still a thing. I’m not naming names but I’m sure you know who and what I’m talking about. I’m just here to say that we don’t have to treat this sort of thing as news, even if it does happen on an otherwise slow news day. The senator in question is first and foremost an attention whore, and while one can argue that there is news value in the public statements of such an individual, this really is little more than egging on a toddler who’s having a meltdown because you turned off “Peppa Pig”. Our professional news gathering organizations could choose not to engage with this kind of ridiculous content, or they could choose to engage with them by calling them what they are, narcissistic ploys for attention by politicians who do nothing to serve the public. Reporting on it in the same way as one reports on a new bill being introduced or a committee hearing or a piece of critical analysis of legislation or a campaign does nothing but waste everyone’s time and degrade the political process by rewarding this kind of bad behavior. And now I’m going to stop wasting your time and mine on this.

Appeals court upholds school district mask mandates

Maybe not the most timely ruling ever, but still nice.

An appellate court on Thursday sided with Texas school districts in their dispute with state officials over mask mandates, which numerous school systems have already lifted as pandemic conditions have eased.

The state’s the 3rd Court of Appeals affirmed a trial court’s orders that granted school districts temporary injunctive relief from the enforcement of an executive order from Gov. Greg Abbott prohibiting mask mandates.

In its opinion Thursday, the appellate court pointed to its opinion in a similar challenge involving Harris County. In that case, the court considered whether a disaster act gave the governor the authority to stop local government entities from implementing COVID-19 safety measures viewed by the governor as “more restrictive than necessary,” according to the opinion.

“For the reasons previously set forth in our opinion in Harris County, we again conclude that the Governor does not possess absolute authority under the Texas Disaster Act to preempt orders issued by governmental entities and officials,” Thursday’s opinion read.

Many, if not all, school districts that defied Abbott’s order have lifted their mask mandates, including Houston, Dallas, Spring and Aldine ISDs, which were among the plaintiffs.

[…]

With the opinion, the court confirmed the state Education Code gave districts the authority to decide.

“We conclude that the Education Code provisions granting broad authority to local school districts and community college districts to govern and oversee public schools within their districts do not prescribe ‘the procedures for conduct of state business,’” the opinion stated. “In sum, the Texas Disaster Act does not grant the Governor absolute authority to preempt orders issued by local governmental entities, such as school districts, and the provisions of the Education Code relied on by the school districts in issuing their respective facecovering requirements are not subject to suspension under … the Act.”

See here for the background, and here for a copy of the opinion. As noted before, the Supreme Court has yet to take up this question, though at this point maybe they just won’t since it’s not currently at issue. (That could of course change.) Ken Paxton is never one to take an L so I suspect he’ll continue to pursue this. I also strongly suspect that a top item on the agenda for the 2023 Lege, assuming no changes in the power structure, will be to amend the Education Code to explicitly prohibit school districts from making this policy without the permission of the Governor first. Have I mentioned that this is an important election coming up? Just checking. The San Antonio Report has more.

And we’re back to yellow again

Let’s hope it lasts.

Harris County Judge Lina Hidalgo on Thursday lowered the county’s COVID threat level to yellow, signaling a controlled level of cases following the decline of the omicron wave.

The yellow level means COVID poses a “moderate threat” to the public and urges residents to continue to stay vigilant unless fully vaccinated.

Under the yellow or moderate level, unvaccinated residents are encouraged to continue masking and social distancing, while vaccinated residents are encouraged to do the same where required by law.

“My hope is that we are at a permanent turning point of this pandemic,” Hidalgo said in a statement. “But we’ve yet to have a wave where our hospitals don’t get overwhelmed, so we need to tread with caution before we declare victory over this virus.”

As noted, we dropped to the orange level two weeks ago. We were last in yellow in November, for less than a month before omicron moved in. I’m still wearing a mask for the grocery store and other indoor places with lots of people – I mean, I haven’t had a cold in over two years now, so why wouldn’t I? You do you, as long as that means getting vaxxed and/or boosted if you haven’t yet.

More school districts dropping mask mandates

Unsurprising.

Some of Texas’ biggest school districts are lifting mask mandates for students just weeks before spring break.

Houston Independent School District, the state’s largest district, and Dallas ISD announced Monday that they would not require students to wear masks. Austin ISD announced Wednesday it would stop requiring masks.

The move comes after the Centers for Disease Control and Prevention announced that coronavirus infection rates were slowing.

“It does give people hope for this spring,” said Dallas ISD superintendent Michael Hinojosa.

All three districts enacted mask mandates in early August amid the delta variant surge and in defiance of Gov. Greg Abbott’s May executive order that says Texas schools can’t require masks.

At the time, dozens of school districts went against the governor’s order, and some were sued.

[…]

Candice Castillo, executive officer of student support services in Houston ISD, said recent data points to a dramatic downturn. In a district with about 195,000 students, there are 46 active cases, a 90% decrease in cases from the peak of omicron.

The district’s decision comes after Harris County Judge Lina Hidalgo lowered Harris County’s COVID-19 threat level from “severe” to “significant.”

“This is the right moment for us to make this decision,” Castillo said.

In Austin ISD, the district has seen a 97% decrease in cases over the last six weeks, and the current number of active cases represents less than 1% of the total student and staff population.

Stephanie Elizalde, Austin ISD superintendent, said Wednesday during an Austin ISD board meeting that the district is abiding by the CDC’s recommendations, but to keep in mind that the fluidity of the pandemic means that the mandate can come back when necessary.

See here for more on HISD lifting its mask mandate. You can feel however you want about this – I know a lot of people are still very apprehensive about easing off on precautions like masking, and I totally understand. I’m still masking in public indoor spaces, and likely will continue for the foreseeable future. But the point is, the districts got to make the decisions they thought were best, based on the status of the pandemic and the advice and guidance from the CDC. That more than anything is what we wanted and deserved. The fact that they managed to hold out in defiance of Abbott and Paxton for all this time is a victory. It could be a transient one – for sure, someone is going to file a bill next session to force school districts to bend the knee to the governor – but at least we have an election first that can affect that action. Again, that’s all we can reasonably ask for at this time.

On the matter of the still-unresolved litigation over the mandates and Abbott’s executive order banning them in the schools:

I Am Not A Lawyer, but my best guess is that SCOTx will eventually take this opportunity to decline to intervene on the grounds that there’s no longer a reason for them to get involved. I suppose they could order the lawsuits to be dismissed, but here’s where my non-lawyerness comes to the fore, because I don’t know if that’s a thing they normally do. Be that as it may, the stars have aligned for them the sidestep a politically charged case, and that I know is a thing they like to do.

We’ve had a lot of COVID

Wow.

More than half of Texans had been infected by COVID-19 as of late January, according to a nationwide blood sample survey conducted by the Centers for Disease Control and Prevention.

The survey was based on samples from 52 commercial laboratories across the country and included specimens that were collected as part of routine care and sick visits unrelated to the virus. The specimens were tested for a specific type of antibody developed in response to an infection but not vaccination.

The CDC has been regularly gathering the data since August 2020 to track the percentage of people with resolving or past infections, and how that varies across geographic areas and age groups.

The survey estimates that 14.7 million Texans — or 52.8 percent — had been infected. That’s well over the 6.5 million cases that have been publicly reported. That figure is also likely an undercount, reflecting only a portion of the new infections from the record-breaking omicron wave, during which Texas reported more than 50,000 new cases in one day.

The high number of infections underscores new CDC guidance that no longer recommends mask-wearing indoors for most of the country, including Harris County, except during times of high transmission. Addressing the rationale for the change, CDC Director Dr. Rochelle Walensky said that with “widespread population immunity, the overall risk of severe disease is now generally lower.”

About 64 percent of Texans are fully vaccinated, according to the Texas Department of State Health Services. While health experts agree that the omicron surge likely bolstered vaccine-related protection, the degree to which people are immune because of a previous infection remains unclear.

“What we don’t know for sure with COVID is how long that natural immunity lasts,” said Dr. Catherine Troisi, epidemiologist with UTHealth School of Public Health in Houston. “And there is the added question of how protective are the antibodies that you’ve made against the (variant) you’ve been infected with.”

Yeah, that’s pretty much the sum of it. We’re likely as well protected right now as we can be given our unacceptably low vaccination rate, but we’re sitting ducks if and when there’s a nastier version of COVID out there. Get your booster if you haven’t – it really matters. We can certainly act in ways that are better suited to risk level and the given situation, but let’s not forget that there’s still a risk out there, and it can and will change over time.

The Rodeo is back

Gonna be interesting to see how different it is, if it’s different at all.

And this year, after a one-year hiatus, the rodeo again will be focused on preventing the spread of COVID-19, the virus that abruptly brought the rodeo to a halt nearly two years ago. Masks will be required on public transit to the rodeo’s grounds, where an abundance of hand-washing and sanitizing stations will be positioned throughout. Many concession stands will only accept credit or debit cards instead of cash, and air-filtration systems have been updated to maximize the fresh air flowing inside NRG Stadium and NRG Center.

As the record-breaking omicron surge subsides, rodeo organizers encourage people to follow health and safety guidelines issued by the Centers for Disease Control and Prevention, which recommends that people stay up-to-date on vaccinations and take precaution such as wearing masks in areas of high transmission. People who are feeling ill are encouraged to stay home. More than 100 people a day continue to die of COVID-19 in Texas, with most of those fatalities among the unvaccinated, figures show.

Still, with the pandemic approaching the two-year mark and nearly 64 percent of Texans age 5 and older vaccinated, health experts agree that it’s time for people to return to large events such as the rodeo.

“We are going to have to live with COVID for a while, and I believe that people should be able to establish a new ‘normal’ and enjoy their lives,” said Dr. M. Kristen Peek, interim dean of the school of public and population health at the University of Texas Medical Branch in Galveston. “The Houston Livestock and Rodeo Show is an important part of Houston that people go and enjoy — just do it safely.”

After reviewing the rodeo’s eight-page document containing its COVID health protocols, Peek said the added precautions “look appropriate.” She said she is looking forward to attending the rodeo with her family.

“We will definitely be masked,” she said.

[…]

Now, 66 percent of Harris County is vaccinated with at least the primary series of Pfizer, Moderna and Johnson & Johnson, according to Harris County Public Health. The recent wave likely boosted natural immunity, and the community is equipped to handle the event without a major risk, said Dr. Paul Klotman, president and CEO of Baylor College of Medicine.

“The rodeo is in a big venue, so there’s a lot of ventilation and a big space,” he said. “Relative to other gatherings, this one ought to be safer than others. And if you look at some of the (recent) football games, there haven’t been a lot of big outbreaks.”

Klotman and other experts added a word of caution: the pandemic is not over. Vulnerable populations, such as immunocompromised people, still face a heightened risk of severe illness if infected.

“I wouldn’t be going if I lived with somebody who is going through cancer chemotherapy,” stressed Dr. James McDeavitt, executive vice president and dean of clinical affairs at Baylor.

See here for some background. I’m mostly okay with this, especially for the outdoor parts of the rodeo. We don’t currently have any plans to go to the fairgrounds, but we’re all vaxxed and boosted, we don’t have any immunocompromised people in our daily lives, and the risk being outdoors is fairly low. Honestly, taking the train to and from the event, which is the only way to go for me, feels a lot more risky just because the trains are always super full during Rodeo times. I’d feel more apprehensive about attending indoor events and the concerts, but if we did we’d be wearing our KN-95s, so it’s no more risky than some other things we’ve been doing. I don’t expect this to become a vector for infection, but by all means exercise as much caution as you want. Don’t go if you don’t feel good about it.

HISD lifts its mask mandate

A bit earlier than expected.

The Houston Independent School District will lift its mask mandate Tuesday, no longer requiring the use of face coverings at all facilities and buildings, district officials said Monday.

The change in policy at Houston ISD arrived three days after the Centers for Disease Control and Prevention changed how it measures community spread to account for hospitalizations in addition to caseloads. Additionally, Harris County Judge Lina Hidalgo last week lowered the county’s COVID-19 threat level to “significant,” the second-highest possible threat level, while Mayor Sylvester Turner lifted a mandate that required city employees and visitors to municipal buildings to wear masks indoors.

“Masks within HISD schools, facilities, and school buses will become optional,” Superintendent Millard House II said in an e-mail to principals Monday morning. “Please encourage students, staff, and any other HISD stakeholders that may need an additional layer of protection or are exhibiting symptoms of a communicable disease to wear a mask regardless of vaccination status.”

See here for the official announcement. I was expecting this to come in a couple of weeks, but here we are. My kids have been pretty dedicated mask wearers, so we’ll see what they and their friends do. I hope that we have done what we can to improve air circulation in the schools, and I hope this spurs some people to get their kids vaccinated. And I really really hope we don’t have to change directions again this semester. The Press has more.

Orange is the new threat level

New again, anyway.

Harris County Judge Lina Hidalgo lowered Harris County’s COVID-19 threat level to “significant” Thursday, signaling the city is emerging from the worst of the omicron wave as infection rates plummet.

Harris County has met all four metrics needed to lower its threat level from red, its highest level indicating “severe risk,” to orange, the second-highest possible threat level. Under orange, officials still recommend that residents minimize all unnecessary contact and avoid large gatherings to stem the spread of the virus.

“The omicron wave hit Harris County very, very hard,” Hidalgo said in a statement. “In fact, only now have our hospitalization rates dropped to levels that don’t immediately threaten the capacity of our healthcare system.”

[…]

The two other metrics that were keeping the county in red — ICU capacity and new cases per 100,000 — have improved in recent days, leading to the downgrade Thursday. The overall percentage of COVID patients in the ICU fell to the county’s threshold of 15 percent, and the seven-day rate of new cases per 100,000 people declined to 83, well below the county’s goal of 100.

Hidalgo encouraged residents to get vaccinated to avoid another “dangerous” COVID spike.

“While we’re moving in the right direction, there are no guarantees we won’t see another wave in the future,” Hidalgo said.

We were last at orange in December, on the way to red a couple of weeks later. At this rate, we’ll likely be back to yellow soon, and after that who knows. The good news is that between our vaccination level and the sheer number of people who contracted omicron, our overall immunity level for the short term is as good as it’s ever been. The bad news is that our vax level is still way too low, far too few kids have been vaxxed, and the waning omicron wave is causing fewer people to get vaxxed now because the threat is receding. It really is just a matter of time before we’re back in a crisis situation again. If we’re lucky, and we make a strong effort to get a lot more people vaccinated in countries that have not had nearly enough vaccine supply, then maybe that next wave is farther off. If not, well, I probably don’t have to tell you what that means. Stace has more.

COVID madness

How many ways will unhinged lunatics find to kill us?

A federal appeals court has reversed a ruling, effectively halting United Airlines’ COVID-19 vaccine mandate for employees. The majority on the 5th U.S. Circuit panel ruled in favor of lifting the mandate. The majority explained its ruling was on very narrow ground, but in a seething dissent, one judge said he would rather “hide my head in a bag” than join the unpublished ruling he indicated would not be upheld on the merits.

The case was brought by a group of United employees challenging the airline’s policy that all employees receive the vaccination or remain on unpaid leave. Two workers received religious exemptions from getting the vaccine. The majority on the New Orleans based court held these exempt workers would suffer irreparable harm if the mandate remained in place, because “they are actively being coerced to violate their religious convictions.”

In an unsigned 22-page ruling from U.S. Judges Jennifer Walker Elrod and Andrew S. Oldham, the court reversed the ruling and remanded the case to the trial judge in the Northern District of Texas for re-consideration of the legality of the company’s vaccine mandate. The majority said the trial court must properly analyze the irreparable harm of making an employee choose between “the job or jab.”

The third judge on the panel, Jerry E. Smith, penned a 57-page signed dissent vehemently calling into question the wisdom of his colleagues’ conclusion, however narrow, that the lower court’s reasoning about the mandate was faulty.

Smith said his colleagues’ findings were “head scratching.” And then Smith offered a searing indictment, highlighted in a thread by attorney and prolific appellate law tweeter Raffi Melkonian.

The dissenting judge wrote, “If I ever wrote an opinion authorizing preliminary injunctive relief for plaintiffs without a cause of action, without a likelihood of success on the merits (for two reasons), and devoid of irreparable injury, despite the text, policy, and history of the relevant statute, despite the balance of equities and the public interest, and despite decades of contrary precedent from this circuit and the Supreme Court, all while inventing and distorting facts to suit my incoherent reasoning,” then “I would hide my head in a bag.” He went on to say, “Perhaps the majority agrees. Why else shrink behind an unsigned and unpublished opinion?”

You really should read that Twitter thread, and also Mark Joseph Stern’s analysis. I know some of y’all are tired of me calling the Fitch Circuit a lawless abomination, but here’s one of its senior jurists, and old school Reagan-appointed capital-C conservative calling it the same thing. Do you believe me now?

Of course, these nutballs need fuel for their fire, and there’s no shortage of that.

Texas Attorney General Ken Paxton and U.S. Rep. Beth Van Duyne, R-Irving, are suing the Biden administration to end mask mandates on planes.

The lawsuit, filed Wednesday, argues that the mandate imposes a “restriction on travelers’ liberty interests” and that the Centers for Disease Control and Prevention does not have the authority to introduce such a blanket preventive measure.

First issued in January 2021, the federal mask mandate requires travelers to wear masks while using public transportation services or facilities, including airports and subway stations. Those who violate the mask mandate could be subject to fines.

Travelers younger than 2 years old or with disabilities who cannot wear a mask are exempt from the requirement. The CDC also amended the order in June 2021 and said the mandate would not apply to outdoor settings.

The federal mandate is set to expire on March 18.

Airline companies — including Texas-based American Airlines and Southwest Airlines — have cited federal law as a reason for requiring face coverings and barring violators from travel.

The suit is the latest in a slew of state efforts to challenge COVID-19 safety measures in court. The state is locked in several legal battles with cities, counties and school districts over masks in public schools. Texas also has sued the Biden administration over federal vaccine mandates for health care workers, federal contractors and large businesses.

I’ll tell you what, when airlines impose a vaccination requirement for flying, which frankly the feds should have done months ago, then I’ll agree that the masks can go. Flying on a commercial aircraft is a privilege, not a right. That privilege can and should be revoked for reckless and dangerous behavior, despite what some Republican Senators would have you believe. Do you think Ted Cruz would actually want to be on the same plane as this guy? So-called “conservatives” have been yelling at us for years about the decline in civil society. Well, they were eventually right about the decline, but completely wrong about the cause. I think we all know the real reasons for it.

HISD may lift the mask mandate after spring break

Seems reasonable.

Houston ISD students will get an extra day spring holiday and will complete the last day of the first semester before the winter break next school year under a calendar approved by the board of trustees Thursday.

The board also faced a parade of speakers demanding the district lift its mask mandate. The item, however, was not on the board’s agenda.

Superintendent Millard House II said the district planned to continue following COVID infection and spread data and, if trends hold, may reassess its policies in early March and potentially lift the mask mandate by the time students return to classrooms after spring break.

“When school resumes on March 21, a scenario exists where masks will be optional,” House said. “We can only get there, as we know, if we all pull together and continue our efforts of mitigation that we know work.”

First, my kids (or at least the one who will still be in HISD next year; the other will be off at college) definitely appreciate having the fall semester end at the start of winter break. Neither of them liked having to deal with finals in January. I suspect they are not alone in this.

Second, HISD had previously considered lifting the mandate at the end of 2021, but chose to keep it in place as omicron began surging. The intent was always to review the policy and scale it back or take it down when it made sense to do so. Some other large urban districts have already taken this step. It’s a complex decision, one that needs to balance evidence that masking has some negative effect on kids, especially younger kids, with the reality that even a “milder” form of COVID can still wreak havoc as teachers and support staff get sick and have to isolate. Hopefully the numbers will stay down enough for this to make sense, and if we’re really lucky maybe we’ll get a longer lull before (sigh) another variant comes along. Here’s hoping for the best.

Two new polls of the Governor’s race

One is in the news.

Beto O’Rourke

Republican Gov. Greg Abbott is running 11 percentage points ahead of Democrat Beto O’Rourke in this year’s race for Texas governor, according to a Dallas Morning News-University of Texas at Tyler poll released Sunday.

Buoyed by 2-to-1 support among whites and a growing number of voters who identify as Republican, Abbott leads O’Rourke in a hypothetical matchup, 47%-36%. He even holds a narrow lead over O’Rourke among Hispanics, 40%-39%.

Registered voters are not in a great mood about Texas’ current direction: 50% say things are on the wrong track, compared with 49% who say the state is headed in the right direction.

Still, Abbott dodges much of the blame. His job rating has held at a respectable net approval, 50%-45%. While he’s still underwater with independent voters, with only 37% of them approving of how he’s performing, he draws unfavorable views from just 38% of all voters.

President Joe Biden is viewed unfavorably by 57% of Texans. That may be one factor weighing down O’Rourke, who in November was only six percentage points behind the incumbent. Abbott also has been linking the former El Paso congressman and presidential candidate to Biden, saying in ads that O’Rourke is too liberal and untrustworthy to lead Texas.

The poll, conducted Jan. 18-25, surveyed 1,082 adults who are registered voters and has a margin of error of plus or minus 3.5 percentage points.

Abbott increased his lead over O’Rourke, which in November stood at just 45%-39%, with modest, “single-digit shifts” among various constituencies, said UT-Tyler political scientist Mark Owens, the poll’s director.

You can see the poll data here and the previous DMN/UT-Tyler poll here. That result was from late November, and it was followed by terrible Quinnipiac result a couple of weeks later. This polling outfit has been eccentric at times, and definitely wasted a lot of energy on ridiculous McConaughey hypotheticals, but it’s a data point and we haven’t had one of those in awhile. They also polled the various primaries, and I would not pay much attention to any of it. Not because of them, but because polling primaries is extremely random, especially given how few people really pay attention to them. Look at the individual race numbers yourself, and you’ll see what I mean.

The results that are of greater interest, as others have noted, are on the issues that voters say are of interest to them:

As a public policy issue for this year, should it be a higher priority to strengthen of the electricity grid or secure the Texas-Mexico border?


Strengthen The Electricity Grid 50%
Secure the Texas-Mexico border  41%
I am not concerned about either  8%

Should it be a higher priority to enforce regulations to stop the spread of the coronavirus or secure the Texas-Mexico border?


Reduce coronavirus infections   52%
Secure the Texas-Mexico border  42%
I am not concerned about either  6% 

Are you more likely or less likely to support an elected official if they supported a mask mandate during the pandemic or do you not care?


More likely     45%
Less likely     22%
Absolutely not  10%

Some school districts have mandated masks be worn in school and others have not. Should masks be required in all K-12 classrooms, allow school districts to decide, or no mandates at all?


Required                41%
Allow schools to decide 28%
No Mandate              25%

Do you support or oppose local governments requiring people to wear masks or face coverings in most public places?


Support  57%
Oppose   35%

Do you support or oppose employers requiring vaccination or weekly testing from their employees?


Support 52%
Oppose  39%

In terms of the issues, this is not a bad place for Beto to be. We’ve talked a lot about how what people say they want in polls and what they actually vote for often diverges, and this may be another example of that. But the driving factor in the polls we’ve seen before is that the numbers are the result of Dems and Republicans being polar opposites, while independents modestly favor the Dem position. Here, while Republicans all fall more on the Abbott side of things, they are fairly evenly divided on the mask questions. Indies are less passionate about most of these than the Dems, and are just barely in favor of employer vaccine mandates, but they are strongly in favor of the other things, with majority support for most. Again, maybe this doesn’t do much to move votes, but these are things Beto is talking about, and it’s way more fun to be on the majority side of questions like these.

There is one other poll we can talk about:

I can’t find anything on the UH Hobby School page, but after looking all weekend I finally found a tweet that pointed me to their polling data. As noted, Beto does better with Latinos in this sample, and the partisan numbers (91-5 for Beto among Dems, 89-3 for Abbott among Rs) make more sense to me than what DMN/UT-Tyler has (72-14 among Dems for Beto, 74-10 for Abbott among Rs). But as always, it’s one result and we shouldn’t read too much into it. They have numbers for each primary race as well – it’s the main focus of the poll – which should be taken with the same large grain of salt. I suspect we’ll start seeing more general election polling going forward.

The Rodeo will (probably) happen

Assuming it all doesn’t go south from here.

Harris County Judge Lina Hidalgo said Tuesday the Houston Livestock Show & Rodeo should proceed as planned, citing a decline in COVID-19 cases and hospitalizations.

“It’s difficult to predict what things are going to look like in a month, but I’m very hopeful,” Hidalgo said. “I hesitate to say A-OK, because I know what our hospitals are facing.”

She did not rule out, however, shuttering the event for the third straight year if trends reverse.

Hidalgo returned the county to its highest virus threat level on Jan. 10, which urges the more than 1 million unvaccinated residents here to stay home and avoid unnecessary contact with others.

There is growing evidence that the omicron wave is waning in the Houston region. Virus hospitalizations have declined 8 percent since peaking on Jan. 18. Unlike previous surges, the Texas Medical Center has never exceeded its base ICU capacity while dealing with omicron.

Last year’s Rodeo was cancelled, and the 2020 Rodeo, which began just before COVID became a known threat here, ended early, though some argued at the time that decision took too long. Our current numbers are headed in the right direction and should be better in a couple more weeks. I doubt I’d be ready to attend actual Rodeo events or one of the concerts, as those are all indoors, but I expect that going to the fairgrounds for a day of outdoor activity ought to be fine. Especially, you know, if you’re vaxxed and boostered. Wearing a mask, at least when you’re in line and definitely when you’re getting food, would also be a good idea. Do what you think makes sense for your risk profile.

On the campaign trail again

It’s good to be back.

In the 2020 election cycle, many campaigns in Texas went fully virtual as the coronavirus pandemic, then a new and uncertain threat, bore down on the state. They held virtual rallies, phone banks and fundraisers, trading in clipboards and walking shoes for webcams and microphones.

As the weeks went on, though, Republicans resumed in-person campaigning and managed to stave off a massive Democratic offensive in November. Democrats later admitted that their decision to suspend door-knocking and other in-person activities hurt them.

Now, nearly two years later and with a new COVID-19 variant surging across the state, Democrats appear set on avoiding the same mistake. Few, if any, Democratic campaigns have gone fully virtual, and many are pressing forward with in-person campaigning while taking some precautions.

“Like everyone else across the globe, we are keeping a close eye on the Covid-19 Omicron Variant and assessing the risks associated with this surge,” Texas Democratic Party spokesperson Angelica Luna Kaufman said in a statement. “However, there is a lot at stake this midterm election and in-person campaigning will be a critical component to engaging voters and winning these races.”

She emphasized the country is “not in the same situation as we were in 2020.” Vaccines are widely available, and people are well-practiced in how to stay safe in public.

Still, the omicron variant looms large, and the campaign trail has not been immune to it. Some forums are still being held virtually, and candidates, staffers and volunteers are having to deal with the logistical challenges that come when one of them tests positive amid the fast-spreading variant.

[…]

Democrats’ most celebrated candidate this cycle, gubernatorial contender Beto O’Rourke, has been regularly campaigning in person since launching his bid in November. He has been holding larger events outside, and his campaign asks attendees to wear masks and encourages them to be vaccinated. The campaign has made rapid testing available to attendees at some events.

“Speaking with Texans one-on-one is at the heart of our campaign,” O’Rourke’s campaign manager, Nick Rathod, said in a statement. “After holding 70 events in 30 cities during the first weeks of our campaign, we remain committed to meeting Texans where they are and will continue to closely follow” public health guidelines.

O’Rourke’s first campaign event since omicron began surging in Texas was Saturday in El Paso. Attendees were told “masks are strongly encouraged regardless of vaccination status” and that they would be provided for those who need them. On event sign-up pages, attendees were also told that by attending, “you understand and accept the risks associated with COVID-19.”

O’Rourke’s campaign is already block walking, though those who volunteer to do so have to sign a “COVID-19 Block Walk Safety Agreement Form.” Among other things, the form requires volunteers to wear masks when not eating or drinking and maintain their distance from voters “at all times possible.”

O’Rourke was among the Democrats who lamented the party’s refusal to campaign in person ahead of the 2020 election. He had been deeply involved in the fight for the Texas House majority through his Powered by People group, which shifted virtually all its activities online because of the pandemic. Writing to supporters days after Republicans swept Texas in the election, O’Rourke said one of the lessons was “nothing beats” talking to voters “eyeball to eyeball” and that “there is a safe way to do this, even in a pandemic.”

Not much to add here. To whatever extent the virtual campaigning of 2020 led to lesser outcomes than we might have had otherwise, no one wants to do that again. Most in-person events right now are being done virtually, but that is temporary. I’m certainly ready to see a bunch of my political friends in person again, in our natural environment. To that, here’s a little song you might know:

Happy trails, y’all.

Back to Code Red

Hopefully not for too long.

Harris County Judge Lina Hidalgo on Monday moved the county again to its highest COVID-19 threat level, her office said.

The announcement should be old hat for Hidalgo, who has moved to Level Red each of the past three calendar years.

“Unfortunately, today we find ourselves crossing a threshold we don’t want to cross,” Hidalgo said at Booker Elementary School in Spring ISD. “We are in the midst of another COVID-10 tsunami.”

She cited an explosion of new COVID-19 cases. She expounded on the dangers of the new Omicron variant. She pointed out that virus hospitalizations are increasing at a higher rate than ever.

Twenty-one months into the pandemic, a question looms: How many people are still listening?

Schools are back in session. Restaurants, bars, theatres and sports arenas are open to capacity. There are no county- or state-wide mask rules. Moving to Level Red does not change any of that; instead, it urges unvaccinated residents to stay home and avoid unnecessary contact with others. The decree is not enforceable.

[…]

Hidalgo has made warning the public about COVID-19 central to her messaging since the pandemic reached Texas in March 2020. For more than a year, she and county public health officials have cajoled, implored, exhorted, implored, advised, recommended, begged and even bribed residents to get vaccinated.

Hidalgo tried to remain optimistic, reasoning that getting more residents inoculated is the way to retreat from Level Red and never return.

“We can break that habit,” Hidalgo said. “I don’t want this always to be bad news.”

Growth of the county’s rate of vaccinated residents has slowed significantly. It now stands at 59.8 percent, up just 3.3 percent since before Thanksgiving. At this rate, 70 percent county of county residents would not be vaccinated until July.

See here for the previous time the threat level was raised. It’s a fair question whether anyone is still listening. I never really stopped wearing masks for indoor things like grocery shopping and ordering at restaurants – I eat outside if at all possible – but now I’m wearing KN95s instead of cloth masks. In my observation, we’re nowhere close to the levels of mask wearing we had a year ago, and few places are doing much about it. I guess we’re going to got for a low-rent version of herd immunity, at least for the short term. Better hope that the “milder” part of this strain holds up. More here from the Chron.

The hospitals are getting slammed again

Take precautions, y’all.

Pandemic forecasters in Texas say the state’s current surge of omicron infections and hospitalizations is likely to get much worse before it gets better, with hospitalizations expected to continue climbing for at least three weeks if social behaviors don’t change and slow the trend.

Across the nation, hospitalizations are already on the verge of breaking new pandemic records. In Texas on Thursday, according to state data, about 9,200 people were hospitalized with COVID-19 — far short of the record 14,218 hospitalizations from Jan. 11, 2021.

But with current numbers climbing exponentially each week, hospitalizations of Texans with COVID are likely to follow national trends and surpass previous levels in the state before they start to decline, said Anass Bouchnita, a researcher at the University of Texas COVID-19 Modeling Consortium, which uses data and research to project the path of the pandemic nationally.

The number of Texans testing positive for the virus every day is already at an all-time high, reaching a seven-day average of almost 44,000 confirmed cases on Friday. The seven-day average of new confirmed cases during the peak of the delta surge back in September was over 15,000.

That trend is likely to continue for at least another week, Bouchnita said.

“The situation in Texas is that it probably won’t reach the peak [for cases] until the second half of January,” he said.

Experts say the extremely high case count is why so many people are showing up in the hospital even as medical evidence suggests that the omicron variant — responsible for most new and active cases in Texas — is less severe than the previously dominant delta variant.

Bouchnita talked to The Texas Tribune on Friday, the same day the UT consortium released a report with the research team’s latest calculations about omicron’s projected path nationally. The report, which looked at eight scenarios in which omicron had varying degrees of severity, infectiousness and resistance to immunity, suggests the nation could see its new cases of this more contagious but less severe strain peak by mid-January before decreasing by half in early February.

The report called the current surge the largest COVID-19 wave in the United States to date.

[…]

Intensive care units at more than 50 hospitals are at 100% capacity, according to state reports, and some regions of the state, including El Paso, are reporting no ICU beds available in the area.

Already, the state’s children’s hospitals have more patients with COVID-19 in their beds than at any other time in the pandemic — 351 statewide on Thursday, which is higher than the last peak during the delta variant surge of 345 in early September.

“It’s pretty crazy,” said Frisco pediatrician Dr. Seth Kaplan, immediate past president of the Texas Pediatrics Society. “Our volume is way up.”

It’s mostly omicron now, very little delta in Texas, though there’s still a fair amount of delta in other parts of the US. It is true that omicron is less severe than delta, but it’s also true that it’s far more transmissible, and it’s affecting far more vaccinated people. Even with less severity, the sheer number of people being infected is driving the higher number of hospitalizations.

And while more vaccinated people are being infected by COVID, there’s still a big difference in outcomes between the vaxxed and the unvaxxed.

Omicron is sending a larger share of vaccinated people to the hospital that any previous COVID-19 variant, but unvaccinated people are still more likely to need critical care, according to Houston-area hospital officials.

Twenty-two of the 27 COVID patients in Harris Health System’s intensive care units are unvaccinated. At Houston Methodist, roughly 60 percent of the 80 COVID patients in the ICU are unvaccinated, and a high percentage of the remaining patients have underlying health conditions, said Dr. Faisal Masud, the hospital’s medical director of critical care.

It’s a similar story at St. Luke’s Health and Memorial Hermann Health System, both of which say 70 percent of ICU patients are unvaccinated.

“The vast majority of the people who are critically ill are either unvaccinated or have significant comorbidities,” said Dr. James McCarthy, chief physician executive at Memorial Hermann. “We are not seeing middle-aged, healthy, vaccinated individuals in the ICU like we did in the previous wave.”

[…]

Statewide, the number of patients in the ICU has been steadily rising since Christmas Eve, from 1,030 to 1,711 on Wednesday, according to the Texas Department of State Health Services. That’s about half of the patients in the ICU at the peak of the delta wave, but some Houston hospitals are already seeing ICU rates double over the last week.

The number of incoming ICU patients could exceed all previous peaks, said Dr. Esmaeil Porsa, president and CEO of Harris Health System. While the vaccines may not be as effective as they were initially, the current ICU population indicates that “they are still extremely effective against severe disease,” he said.

“More and more breakthrough infections are going to happen,” Porsa said. “We’re going to get a higher percentage of people who are vaccinated, but that number is never going to be a big number. It’s always going to be minority of people.”

Overall, doctors say omicron is not damaging the lungs as much as earlier strains. Fewer COVID patients in the Harris Health ICU require mechanical ventilation compared to delta, said Porsa, but other health issues like kidney and heart failure are becoming more common.

At Methodist, Masud has observed a similar pattern. A large portion of ICU patients Masud has treated ended up in the unit because the virus exacerbated an existing disease. The risk of facing such complications is higher for unvaccinated people, he said.

“This is eliciting an immune response, which is not only limited to lungs but which makes the patients sicker, with existing disease becoming much worse,” he said.

Masud said that now is a critical time to wear a well-fitted mask in public, especially for people who are not vaccinated.

It’s the same as before, in that the things you can do to mitigate your risk haven’t changed. Get vaxxed, and get your booster. Wear an N95 or KN95 mask when out with people. Avoid large indoor events and gatherings. Stay home if you’re not feeling well. This will pass, but how bad it gets before it passes is still up in the air. For more on the national picture, see TPM, Mother Jones, and Daily Kos.

Third Court of Appeals upholds Harris County mask mandate

Savor the win, for it’s off to SCOTx next.

A state appeals court on Thursday upheld a lower-court injunction that allowed Harris County to impose mask requirements despite Gov. Greg Abbott’s executive order banning such mandates.

The Austin-based 3rd Court of Appeals rejected arguments by Abbott and Texas Attorney General Ken Paxton, who claimed state law lets the governor overturn local health mandates imposed to mitigate the spread of a dangerous virus.

Abbott hasn’t budged:Texas parents pleaded for Gov. Abbott to allow mask mandates in schools

“The Governor does not possess absolute authority under the Texas Disaster Act to preempt orders issued by local governmental entities or officials that contradict his executive orders,” said the opinion, written by Justice Chari Kelly.

The appeals court also said the disaster act does not allow, as Abbott and Paxton argued, the governor to suspend state public health laws that give local leaders the power to impose safety rules during declared emergencies.

“(The disaster act) does not give the governor carte blanche to issue executive orders empowering him to rule the state in any way he wishes during a disaster,” Kelly said in an opinion joined by Chief Justice Darlene Byrne and Justice Gisela Triana. All three justices are Democrats.

[…]

The appeal before the 3rd Court hinged on whether language in the Texas Disaster Act empowered Abbott to ban local rules enacted to protect public health.

Paxton and Abbott argued that the act:

• Designates the governor as “commander in chief” when addressing statewide disasters.

• Says local officials act as the governor’s designated agents during emergencies.

• States that executive orders issued under the act have the “force and effect of law.”

The appeals court, however, said Paxton and Abbott took the act’s provisions out of context.

The disaster law designates the governor as commander in chief of “state agencies, boards and commissions having emergency responsibilities” — not counties, Kelly wrote. In addition, nothing in the law limits the authority of county and local officials to respond to local disasters or public health crises, Kelly said.

“Even a statewide disaster may have distinct and disproportionate impacts in each of the state’s 254 counties and that, as a result, some measures for addressing a disaster in some counties may not be necessary or even appropriate in other counties,” Kelly wrote.

What’s more, she wrote, the disaster act lets the governor suspend “regulatory” laws that pertain to conducting state business. But Abbott sought to suspend a state law that lets local officials set public health rules in emergencies, and that law is not regulatory, the appeals court concluded.

“The Act empowers and recognizes that the Governor may issue statewide disaster declarations and that certain local officials may also issue local disaster declarations,” Kelly wrote.

“Nothing in the Act, however, suggests that these authorities are mutually exclusive,” she added.

As noted, the Third Court upheld a ruling issued in August by a Travis County district court. Note that there’s a second case, involving HISD and some other school districts, that was not part of this appeal. In this case, the three justices made the same points in the opinion that plenty of people, myself included, have been making all along about the Governor’s powers. Those judges are Democrats, and the judges on the Supreme Court are not, so we can’t just expect them to employ such thinking. Maybe they will, you never know, but you sure can’t assume it. For now, at least, the good guys have won. And even if SCOTx reverses this opinion, it’s still the case that Abbott and Paxton, by their own admission, don’t have the power to enforce Abbott’s no-mask mandate. Let’s not forget that.

Back to school

Sort of.

Roughly one-quarter of Houston ISD students were absent Monday, the first day back following the district’s winter break, according to the district.

District officials released figures Tuesday that showed 45,515 students were absent on Monday and 26,259 on Tuesday, resulting in attendance rates of 76 percent and 85 percent, respectively. The district’s average daily attendance was 95 percent in the 2018-19 school year, the latest figures available from the Texas Education Agency.

While the data did not include reasons why students missed school, the absences offered a clue about the potential impact of the COVID-19 omicron variant surge on schools as they resumed instruction following breaks in the Houston region.

One possible reason for the high absenteeism on Monday: At least in my house, we all thought school didn’t start until Tuesday the 4th. Most years, the first Monday in January is a teacher in-service day, so schools are open but not for students. That was not the case this year, and it wasn’t until we saw an email from the Superintendent on Friday that we realized our error. I would not be surprised if some number of families had made travel plans that didn’t have them back in town until Monday. Obviously, COVID diagnoses and exposure and plain old fear played a role as well, but the difference between Monday and Tuesday is big enough that I think failure to understand the schedule was a factor. Just a thought.

Now that we’re a week into the school year, my kids, at two different HISD high schools, did not say anything about having a lot of substitute teachers or empty classrooms or anything like that. HISD does still have its mask mandate, so maybe that has allayed some fears, I don’t know. The younger kid has finals next week, so I am hoping for as much normality as the fates will grant us. Fingers crossed.

Meanwhile, on a tangential note:

Houston Independent School District is calling on students and alumni for help to address the loss of learning its elementary students suffered due to challenges from the pandemic.

The district announced Wednesday that it is hiring 500 HISD students and alumni for spring semester tutoring positions at elementary schools throughout the district. The district is seeking students ages 15 and up and alumni currently in college for the position which pays $12 an hour, according to a release.

[…]

Student tutors will work in-person with shifts available during the school day, after school and on Saturdays, according to the release, and will be paired with a certified teacher for up to 20 hours a week to help third to fifth-grade students with core subjects like English, Math and Science.

The program begins in January and runs through the end of June, according to the release. Those interested should apply by Jan. 12 at apply.ieducateusa.org. No experience is required and the district welcomes all majors.

The HISD press release is here. Go check this out if you’re interested.

Three comments about three vaccine mandate news stories

Item one:

A U.S. district judge in North Texas has blocked a mask mandate and vaccine requirement for staff and students in the Head Start program that was issued by President Joe Biden.

Head Start is a federal school readiness program for young kids in low-income families that is administered nationally by the federal Health and Human Services department, but run locally by nonprofits or schools. Biden previously ordered that staff running Head Start programs must be vaccinated and all students over the age of 2 had to wear masks. Texas Attorney General Ken Paxton and Lubbock ISD sued the Biden administration to stop enforcement of that order.

U.S. District Judge James Wesley Hendrix, a 2019 appointee of Republican President Donald Trump, ruled Friday that the Biden administration could not enforce its mask and vaccine mandates for the Head Start program in Texas, although the mandates would continue in other states.

Hendrix wrote that the process by which the Biden administration implemented the mask and vaccine rules was in violation of federal law because such rules could only be put in place through a detailed process or with the authorization of Congress. The order applies until the judge holds a trial and issues a final decision on the full merits of the case, or if it is lifted by a higher court.

Item two:

In the state’s latest push against federal vaccine mandates, Gov. Greg Abbott on Tuesday announced plans to sue the Biden administration for requiring Texas National Guard members to get vaccinated against COVID-19.

The suit would be the latest in what has been a slew of litigation against federal vaccine mandates that Texas has either brought forth or taken part in during the pandemic.

In a letter issued Tuesday to Maj. Gen. Tracy R. Norris, the adjutant general of the Texas National Guard, Abbott claimed authority to exempt Texas guard members from receiving the vaccine.

Item three:

A federal judge in Fort Worth granted an injunction Monday against the Department of Defense and the Biden Administration that temporarily halted the U.S. Navy’s COVID-19 vaccine mandate.

The mandate is challenged by a group of U.S. Navy SEALs and other Naval special warfare personnel who say the mandate violates their religious freedom and they have been denied religious exemptions from receiving the vaccine.

U.S. District Judge Reed O’Connor of the Northern District of Texas signed the injunction order after hearing testimony from several Navy SEALs in December as part of the group’s lawsuit. The suit is against President Joe Biden, the Department of Defense, the Secretary of Defense and the Secretary of the Navy Carlos Del Toro.

My comments:

1. It is impossible to overstate how much Greg Abbott and Ken Paxton are on the side of the COVID virus. They themselves are vaccinated, because they are not stupid and want to stay alive, but they absolutely do not care how many people die as a result of COVID. They see only political advantage in making the pandemic worse.

2. They will always be able to find Trumpy judges to plead their cases to, and will generally get favorable rulings from them as a result.

3. The only way to stop the state of Texas from filing these lawsuits is to elect a Democrat as Attorney General. Electing Beto O’Rourke as Governor would also help, as he would be less likely to impose pro-COVID executive orders.

Any questions?

Back to school, kids

It’ll probably be fine. And honestly, there’s no appetite for anything else.

Most of Texas’ roughly 1,200 school districts will welcome students and staff back within the next week, even as other states debate whether to mandate vaccines for teachers and staff or even return to remote learning. Almost 1 in 4 COVID tests in Texan are coming back positive for the virus, and hospitalizations have increased by 1,613 patients compared with a week ago. As of Dec. 28, 4,917 Texans were hospitalized for the coronavirus.

As of Wednesday, there were 220 Texans under the age of 18 hospitalized for COVID-19, according to data from the Texas Department of State Health Services. That number has been increasing since Christmas. Texas saw the highest number of people under the age of 18 hospitalized for COVID-19 in early September, when it was at 345.

The omicron variant has been surging across the United States. So far, it has generally been less severe and deadly than the earlier delta variant. However, the federal government recommends that all children 5 or older get the vaccine.

At Cook Children’s Health Care System in Tarrant County, positive cases among children have climbed sharply since Dec. 21 — going from a 5.7% positivity rate to 22.1%. “We are seeing upwards of 400 positive COVID-19 cases among children per day,” Dr. Mary Suzanne Whitworth said in a statement. “This is similar to where we were in early September when delta was spreading rapidly in our area.”

Despite those numbers, education leaders have largely urged a return to regular in-person instruction, with precautions in place.

Superintendent Millard House II of the Houston Independent School District, the state’s largest, announced Wednesday that it will maintain its mask mandate and will start to offer free COVID-19 testing for students and staff.

“We are looking forward to adding this layer of protection to our COVID-19 mitigation strategies,” House said in a statement. “We remain committed to keeping our students and staff safe and working toward implementing strategies that can help us continue offering safe and sustainable in-person instruction.”

In Austin, the school district will continue to require masks on campus and will offer testing to students and staff and vaccination clinics for anyone 5 and older.

In an email sent to Austin parents, district administrators said they were keeping schools open because they were confident that mitigation strategies were working and because vaccines are now widely available.

“Our layered protocols work! We have been here before. We can do this. Our kids need the schools to stay open,” Superintendent Stephanie Elizalde wrote in the email.

She added that the Austin ISD would continue social distancing, serving lunches outdoors and using its advanced air filtration system to slow the spread.

HISD’s mask mandate has been a big success, though it hasn’t really been tested by omicron yet. If people are properly wearing appropriate masks, they can protect themselves pretty well. Better ventilation and doing whatever possible outside is helpful. I’d feel a lot better if a whole lot more kids were getting vaccinated, but maybe getting them back into schools will nudge a few more in that direction. Some universities have pushed back the start of in person classes for their spring semester in favor of online learning, but I just don’t see that as viable for the independent school districts, at least not at this time. Mask, ventilate, vax, test, and isolate as needed, and we can get through this. I’m hoping for the best.

Got to keep an eye on the hospitalizations

They’re up, but for now we’re still in reasonably decent shape.

More than 1,200 people were hospitalized for COVID-19 in the Houston area on Monday, according to data released by the state Tuesday afternoon. The Department of State Health Services reported that 1,224 people were hospitalized for COVID-19 in the nine-county region around Houston.

The figure comes one day after the state reported topping 1,000 hospitalizations for the first time since October as the delta wave tapered off.

The hospitalization rate represents a 93 percent increase over last Monday, when DSHS recorded 636 COVID hospitalizations in the Houston area. The surge corresponds with the rapid spread of the highly-transmissible omicron variant, which first appeared in South Africa in late November, and has swelled to account for more than 90 percent of local cases in recent weeks.

Houston’s hospitalizations are still well below their delta peak, which reached 3,500 on Aug. 24. But less than a week after Houston  logged its 300,000th case of COVID, data from the Texas Medical Center shows that local transmission is increasing at a steady rate.

The current transmission rate is high – basically, on average everyone who gets the omicron variant will pass it on to another two people – and our vaccination rates remain pathetically mediocre. Harris County is better than the state overall, but not by much. There’s still a lot of room for this thing to find vulnerable people. Use rapid tests, isolate if you get a positive result, and wear good quality masks. We really can get through this if we’re not too dumb about it.

HISD will not lift its mask mandate

Seems like an easy call at this point.

The Houston Independent School District will maintain its mask mandate and offer free COVID testing at campuses for students and staff in 2022, Superintendent Millard House II announced last week.

House previously said the district would review the mandate after the holidays. The largest public school district in the state, HISD remains one of the few school systems regionally with a mask requirement.

“In light of the surge of COVID-19 cases in Houston and the surrounding areas, HISD continues to prioritize safety, including providing additional vaccination and COVID testing opportunities,” House said in an email to parents.

The ongoing spread of the omicron variant, which has proven capable of evading some immunity from vaccines, has triggered a steep surge in cases nationwide. The average number of daily cases has more than doubled since Nov. 29, from 80,680 to 201,330, according to the New York Times COVID data tracker. The numbers are also climbing in Texas, which reported 10,600 confirmed new cases last Thursday, the highest total since Oct. 6.

HISD data only shows confirmed cases up to Dec. 17. The district reported 143 positive cases on that day, up from 22 on Dec. 10.

Starting in January 2022, the district will offer free COVID-19 PCR tests on campuses to HISD students and staff. A one-time consent is required for testing and can be filled out at the following link https://bit.ly/HISDC19Test.

See here and here for some background, and here for a copy of Superintendent House’s email. It was reasonable, back in November when things were looking good and Harris County was lowering its threat level to consider whether the mask mandate was still needed after the holidays. For obvious reasons, things have changed since then, and it would be more than a little unwise to take other action. If omicron burns itself out quickly, if the kid vaccination rate skyrockets, the district can consider the question again later. For now, there was no other call to make.

And by the way, isn’t it nice how HISD called Greg Abbott and Ken Paxton’s bluff on their mask mandate ban and threats to sue over HISD’s totally correct action? That has paid off in spades, and brings with it the extra zest of knowing we beat them fair and square. A whole lot more districts should have followed this path.

Our year in COVID

It was bad. How it is next year is at least partially up to us.

Speaks for itself (Source: DSHS)

Texas recorded a 35 percent increase in COVID-19 deaths in 2021, compared to the first year of the pandemic, even though vaccines have been available for all adults since March.

The climbing toll, public health experts said, is almost entirely driven by people who are unvaccinated. From mid-January through October, just 8 percent of Texas virus deaths were among inoculated residents.

Memorial Hermann Chief Physician Dr. James McCarthy said it makes sense there would be more virus deaths in 2021, the first full year of the pandemic, though the highly transmissible delta variant coupled with a low vaccination rate and the decline of safe practices made fatalities worse than they otherwise would have been. And as the ultra-contagious omicron variant spreads rapidly in Houston, the pattern could continue.

“The real reason it’s worse this year is we stopped all the mask-wearing protection activities we had with a large portion of the population still unvaccinated and vulnerable to infection, hospitalization and death,” McCarthy said.

Texas this year had recorded 42,100 virus deaths through Dec. 13, according to data from the state health department, compared to 31,309 in 2020. The pandemic was declared in March 2020.

The share of fully vaccinated Texans is 56 percent, the 29th-highest rate in the country. Its large population means Texas has more unvaccinated residents — 12.8 million — than any state except California.

Four of the six deadliest months of the pandemic in Texas were in 2021. The most populous cities and counties have had the most virus deaths.

[…]

At this pace, Texas would not reach 70 percent until late May of 2022, the Centers For Disease Control and Prevention projects.

Harris County is outperforming the state average vaccine rate. Through Dec. 16, 59 percent of county residents were fully inoculated.

In other words, there’s still a lot of room for the next surge to rip through and infect, hospitalize, and kill unvaccinated people. Vaccinated people will also get sick, but they will be far less likely to get sick enough to be in danger.

We’re not going to get any help from the state government. The federal government is making more tests available and has ordered vaccine mandates, which really will do a lot to improve things, but of course our state leaders are fighting them as if they had stock in COVID itself. I don’t have anything original to say, but do go read the Department of State Health Services report that provided a lot of these numbers. And do what you need to do to protect yourself and your family.

Back to threat level orange

Thanks, omicron.

Harris County Judge Lina Hidalgo raised Harris County’s COVID-19 threat level to “significant” Monday, as the number of infections rise sharply, sparked by the spread of the omicron variant.

“Level 2: Orange,” is the second-highest threat level in the county. While it falls short of suggesting that residents stay home under all circumstances, Threat Level 2 recommends that people minimize all uneccessary contacts in order to stem the flow of the virus.

“Unfortunately, the Omicron variant has arrived in Harris County in full force,” Hidalgo said in a statement. “These trends are understandably frustrating — especially as we close out the year with friends and family. But we can still blunt the force of this latest wave if we take action.”

New cases in the area have nearly tripled in the last week, with the Texas Medical Center reporting about 2,094 cases per day compared to about 721 the week before.

The COVID-19 testing positivity rate has jumped from 2.7 percent to 6.2 percent in that span, and hospitalizations at the medical center have grown from about 68 people per day to about 110.

As noted, it was less than one month ago that the threat level had been lowered to yellow. Those were the days, huh? And now we’re back to this.

Jayne Johnston broke the bad news on Saturday to her 6-year-old daughter: Theater Under the Stars’ production of “The Little Mermaid” was canceled.

“She was crushed because she was so excited,” Johnston says. “I made this big deal about her getting vaccinated. I’d told her, ‘You’ll get to go inside places again, but you’ll still have to wear a mask.’”

The mother-daughter duo had planned to see the 2 p.m. performance at the Hobby Center. At the time, another show was also scheduled for 7:30 p.m., but it was canceled, too.

“While we had hoped to resume performances on Sunday, we have confirmed a positive COVID case among our performing company,” said TUTS artistic director Dan Knechtges in a statement. “Our paramount concerns are for the health and safety of our artists and audiences. It does, regrettably, put us in the position of making hard decisions and cancelling performances this weekend. Performances will resume on Tuesday, December 21.”

The spread of the omicron COVID variant and the recent spike in cases is beginning to affect live theater, sports and other public gatherings in Houston.

[…]

Similar to TUTS, Alley Theatre’s guest services team alerted patrons on Saturday a person working on ‘A Christmas Carol’ tested positive for coronavirus. Ticket-holders can requests seats to a future show date through Dec. 29, or any future Alley production. Refunds are available, too.

“It’s disappointing because we’ve done so well this whole run of ‘A Christmas Carol,’” says Dean R. Gladden, Alley Theatre Managing Director. “We’ve done a lot to prepare, but the biggest thing you can’t prepare for is when it happens to you — you just have to deal with it.”

Gladden explains that his actors are already kept separate in respective bubbles. When someone tests positive for COVID, everyone — including production — has to provide negative results. That didn’t happen in time for Sunday’s performance. “A Christmas Carol” is expected to return to the stage on Tuesday.

“Patrons have been so understanding to know that it’s nobody’s fault. This is a very active variant,” he says. “We’re seeing this across the country. Performing arts are taking a hit, sports are taking a hit.”.

On Sunday, Rice University postponed a men’s basketball home game against University of St. Thomas due to COVID-related issues within the Owl’s program according to a statement. The women’s basketball team canceled Sunday’s game at Texas A&M University due to COVID issues, as well.

“With contract tracing, we didn’t have enough players to play the games. Basketball is a smaller team,” says Chuck Pool, Sports Information Director at Rice. There’s a slim chance both games could be rescheduled if the dates work out. “I can’t really speculate. These would’ve been our last games before Christmas.”

Not just colleges, and of course not just live theater:

Yesterday, a little after noon, the Dandelion Cafe posted a notice to its Facebook page. It echoed the sign newly posted on the door of this Bellaire breakfast staple: “Due to a rise in COVID cases, including several among our staff, we feel it is in the best interest of our staff, customers and everyone’s families to close until everyone can work and be in a safe and healthy environment.”

This unwelcome news was the leading edge of what is likely to be a spate of restaurant and bar closures over the holidays and into January, as the highly transmissible Omicron variant of COVID begins traveling through Houston on top of our current Delta wave.

COVID “seems to be picking up in the industry again,” bartender and diner-about-town Chris Frankel posted on Dandelion Cafe’s Facebook page today. “I’ve recently noticed a number of responsible, vaccinated colleagues testing positive and being stuck in quarantine.” Omicron’s ability to break through vaccine defenses is complicating the situation.

It sucks, but this is where we are now.

Houston doctors worry omicron could sweep the city just as families gather for the holidays. Omicron accounted for 82 percent of new symptomatic Houston Methodist COVID cases as of earlier this week, hospital officials said, and is on track to overtake delta as the dominant strain.

“This virus is better able to evade better the immune response we have developed through vaccination and natural immunity,” said Dr. Pedro A. Piedra, a virologist at Baylor College of Medicine.

Piedra estimates omicron will replace delta in the months to come. He is not alone in predicting an omicron wave, even as its severity remains a question mark.

Three weeks ago, Houston’s rate of transmission for coronavirus — a key indicator health officials use to gauge community spread — was 0.67, according to the Texas Medical Center. That means each person with the virus was likely to spread it to 0.67 people – nonviral, essentially. That rate has more than doubled as of last week, with a 1.58 rate of transmission.

The number of COVID-19 tests coming back positive in Houston has quadrupled since last week. Hospitalizations among children have doubled in four days.

The reason for omicron’s rapid ascent is written in its spike proteins, found on the surface of the virus that causes COVID. The variant contains a high number of previously unseen mutations that account for its ability to infect people faster and more efficiently than any previous iteration of the virus.

While scientists hurry to understand its properties, one thing is certain: its astonishing rise was months faster than that of delta.

“We have seen a rather dramatic shift,” said Dr. James Versalovic, pathologist-in-chief at the Texas Children’s Hospital.

You know the drill by now. Get your booster shot. Avoid large indoor crowds. Wear your mask – N95s are cheap and readily available now. Ventilate well. Use rapid tests and for God’s sake isolate if you’re positive. Minimize your risk and do what you can to protect others. We’re very much in a better place to avoid severe consequences, but we still have to be cautious. Yes, it sucks. The alternative is worse. Stace and the Press have more.

HISD will keep its mask mandate

This is in response to that recent Fifth Circuit ruling about mask mandates in schools and whether Greg Abbott’s ban on them violated the Americans with Disabilities Act.

The Houston Independent School District will keep its mask mandate in place, district officials said Thursday, despite a federal appeals court ruling halting an injunction on Gov. Greg Abbott’s order prohibiting such requirements.

“The ruling does not impact the requirement that students, staff, and visitors must wear masks while on HISD property. This mandate remains in place for HISD schools,” the district said in a statement. “While we are heartened that we have maintained the lowest rate of active COVID-19 cases in the state and vaccinations are now available for our youngest students, HISD’s mask mandate will remain in place for students, staff, and visitors in all HISD schools, buildings, and buses regardless of vaccination status.”

HISD plans to review the mandate at the end of its semester after the holidays, Superintendent Millard House II said last month.

House implemented HISD’s mandate shortly before the start of the school year and the board of trustees voted to express support for it.

The district, by and large, has avoided significant backlash from individuals opposing the mandate, outside of a handful of parents who have addressed House and trustees at board meetings and during a recent series of community forums.

The district’s statement noted that HISD and other districts sued over the governor’s order in state district court. The lawsuit, it said, is based on state law regarding the authority of Texas school districts to make health and safety decisions for their students. It remains in litigation.

See here for more on the Fifth Circuit ruling. As noted, Superintendent House did say that HISD would consider lifting its mask mandate after the holidays if conditions continue to improve; who knows what will happen now that the omicron variant is out there. The federal lawsuit really didn’t have much bearing on HISD anyway, since they were among the plaintiffs that had sued Abbott in state court over his mandate ban, and won an injunction that as far as I know is still in place; besides, Abbott and Paxton don’t have any authority to enforce it anyway. The district and the Superintendent are doing the right thing. Keep on keeping on. The Press has more.

Appeals court upholds Dallas mask mandate

There’s still mask mandate litigation going on, and Greg Abbott keeps getting his ass handed to him.

Clay Jenkins

Mask mandates will be allowed in the State of Texas. The Fifth Court of Appeals in Dallas issued the ruling during the late night on November 22.

The decision is the latest chapter in the fight between Governor Greg Abbott and Dallas County Judge Clay Jenkins over how to handle the COVID-19 pandemic.

Jenkins had argued he had the right to issue a local mask mandate if it means protecting public health and that he had the power to do so under the Texas Disaster Act.

Abbott had asserted that he had the authority to issue a statewide order banning the mandates. His attorneys argued it was a matter of law and that the governor was given the power under the Texas Disaster Act.

On Monday, an appeals judge issued a temporary injunction against the governor’s ban saying, “…Abbott lacks legal authority to act as he attempted. Instead, by endeavoring to exercise power beyond that given to him in the Disaster Act, he attempted to infringe on Jenkins’s powers.”

[…]

After a district judge issued a temporary injunction supporting Jenkins in August, the governor’s office sought a higher ruling from the district court of appeals.

Neither the governor’s office nor the Texas Attorney General’s office have commented on the ruling, but they could choose to appeal it to the Supreme Court of Texas.

“We’ll have to see what the attorney general and the governor want to do, but I’m not tired and I will continue to stand for your public health against any other elected official,” said Jenkins.

In the meantime, Jenkins says, don’t let all the legal back and forth confuse you.

“Don’t listen to what people tell you is legal. Listen to what doctors tell you is safe,” he said.

See here for the previous entry, and here for the opinion. Note that this is a state lawsuit about what cities and counties can do, and has nothing to do with the federal lawsuit that the Fifth Circuit Court of Appeals was meddling in. Different Fifth Courts – believe me, I know, it’s confusing.

Beyond that, not a whole lot of coverage when I went looking for stories, which I knew to do because I saw this tweet from Judge Jenkins. Maybe that’s a holiday week problem, I don’t know. As I said, there’s a ton of lawsuits out there over the Abbott executive order that banned mask mandates by cities and counties and school districts, and so far the plaintiffs have mostly won. That may all come crashing to a halt at the Supreme Court, but until then the leaders who have been bold and exercised actual leadership have been rewarded for it. Gotta enjoy those victories while you can.

Fifth Circuit puts school mask order on hold

This effing court.

A federal appeals court has reinstated Gov. Greg Abbott’s executive order banning mask mandates as it weighs a federal judge’s ruling that the ban violates the rights of disabled students.

U.S. District Judge Lee Yeakel previously ruled that the order violated the Americans with Disabilities Act and the American Rescue Plan, which gives discretion to school districts to follow Centers for Disease Control and Prevention guidance on the virus. Yeakel, an appointee of former President George W. Bush, had banned state Attorney General Ken Paxton from enforcing the order, including suing school districts that required masks.

Texas appealed the judge’s ruling to the Fifth Circuit U.S. Court of Appeals in New Orleans, a court composed mostly of judges appointed by Republican presidents that has historically trended conservative in its legal decisions. Wednesday’s decision was made by a three-judge panel, two of whom were appointed by former President Donald Trump.

The lawsuit was brought by Disabled Rights Texas on behalf of a number of children with disabilities in Texas. Lawyers for those children argued the law banning mask mandates goes against CDC advice and that it doesn’t allow schools to consider mask mandates as an accommodation for kids with disabilities who are particularly vulnerable to COVID-19. They argued that it violates the ADA, which requires equal access to public goods for people with and without disabilities.

See here for the background. Other than the Bloomberg News story linked in the Chron piece, which says that the order was made by the court without any explanation, I can’t find any coverage of this, so this is what we know. But honestly, how much more do we need to know? As with the SB8 case and the detailed ruling given by the district court judge, the Fifth Circuit exists to enforce a partisan orthodoxy on whatever comes before it. When was the last time the state of Texas went running to them to ask for a stay on a ruling they didn’t like and got a No answer? All of the things that reformers want to do to the Supreme Court need to be done with even more urgency to this abomination.

HISD will consider lifting its mask mandate

After the holidays, depending on how things go.

Houston ISD will consider changing its mask mandate policy after the winter break in the wake of expanded vaccine eligibility for youngsters and improving pandemic conditions in the city, Superintendent Millard House II said Monday.

House noted there have been spikes of COVID-19 infections following holidays since the pandemic began and said he would like to get through the winter holidays before deciding whether to lift the face-covering rule.

The district will seek feedback from the community about whether it should modify its mandate before making a decision, he said.

“We would like to get through the holidays and then we will come back from the holidays and consider what the data is telling us at that particular point,” House said. “And if we are continuing to push forward in the right direction — like we are heading right now — there will be consideration around, you know, not making the mask mandate mandated.”

[…]

Earlier this month, County Judge Lina Hidalgo reduced the threat level of COVID from “severe” to “significant” due to a decrease in new cases and hospitalizations. She encouraged unvaccinated persons to avoid gatherings, wear a mask and get a vaccine while asking those fully vaccinated to wear masks indoors due to significant transmission.

The Texas Medical Center reported 43 new hospitalizations on Sunday. Approximately 56.7 percent of the county’s population is considered fully vaccinated, per county data; that reflects nearly 69 percent of population aged 12 and older who are eligible for the vaccine. Across Texas, 54 percent of the population is considered fully vaccinated, according to state data.

Dr. Omar Matuk-Villazon, a pediatrician and Chief Medical Officer at the UH College of Medicine, said he has heard from children who are excited to get a shot because they see it as a way to get rid of masks. The U.S. Centers for Disease Control and Prevention still recommends universal masking in schools, but he said discussing paths to getting rid of mandates is a worthwhile conversation.

“Let’s have every kid who wants to be protected get protected and then let’s decide after that,” Matuk-Villazon said. “We may lose public health care trust. … We need to have a plan.”

At HISD, House has repeated since implementing the mandate less than two weeks before a full return to in-person instruction in August that it could be changed, depending on the circumstances of the pandemic. During recent town halls, he told some parents who asked him to consider changing it that it was his hope to, when the time is right.

Since the start of school, the district of nearly 195,000 students, has logged 3,569 cumulative cases among kids and 496 among staffers. As of Monday, it reported 241 active cases, 213 of which were students and 28 staffers.

As the story notes, some area districts have already lifted their mask mandates, while others haven’t made any plans to do away with theirs. HISD is also partnering with the Houston Health Department to provide vaccines for children ages 5 and up at select schools. I’m basically fine with this plan, and if you’ve listened to any of my HISD candidate interviews, you know this combination of “more vaccinations plus a sufficiently low case rate” was the consensus view for when the mask mandate should be eased up. I don’t think we need to be in any rush, so waiting to see if there are any post-holiday spikes is a good idea.

HISD really has done a good job of keeping everyone safe so far this semester. I can tell you, the number of calls and emails I’ve gotten about confirmed cases at my kids’ schools is far less than it was last spring. We should want to get to a point where it’s safe to let people go maskless. I hope this means that the vax rate among HISD teachers and staffers is sufficiently high to pursue this, and I would be very happy for them to continue to enforce masking among those who aren’t vaxxed. They’re the risky ones, after all. In the meantime, let’s set this goal, and then work to make it reachable. It’s worth doing.

Bexar mask mandate back on

Abbott and Paxton take another L.

A temporary order that allows the City of San Antonio and Bexar County to require masks in their buildings will stay in place until a lawsuit challenging an executive order goes to trial in December, the 4th Court of Appeals ruled Wednesday.

In another blow to Gov. Greg Abbott’s executive order, U.S. District Judge Lee Yeakel ruled Wednesday in Austin that the ban on mask mandates in schools violates the Americans with Disabilities Act — freeing local officials to again create their own rules, according to The Texas Tribune.

After San Antonio and Bexar County sued Abbott over his July executive order that prohibited local governments from issuing mask mandates, a Bexar County district judge issued a temporary injunction in August. That temporary injunction gave the city and county the ability to require masks inside city- and county-owned facilities as well as in public schools that teach pre-kindergarten through 12th grade.

The 4th Court of Appeals had already upheld the temporary injunction after Texas Attorney General Ken Paxton appealed the trial court’s decision and argued that his appeal automatically blocked the city and county’s mask mandate. That decision made in August was temporary until the appellate court could take up the matter and issue a more final decision, which occurred Wednesday, said Larry Roberson, civil division chief of the Bexar County District Attorney’s office.

“This is the opinion on the temporary injunction,” he said. “The earlier issues were just procedural.”

The city and county argued that the governor’s executive order exceeded his scope of authority by blocking local governments from creating public health prevention measures. They also argued that by not having the ability to enforce their own public health measures, coronavirus transmission would be more widespread without masks and cause irreparable harm.

Their arguments were enough to validate the need for a temporary injunction, three judges on the 4th Court of Appeals found.

“We conclude that the City and County have pled sufficient facts to establish that their injuries are ‘likely to be redressed by the requested relief,’” Chief Justice Rebeca C. Martinez wrote in the appellate court’s opinion issued Wednesday.

See here for the previous update and here for the court’s opinion. I will note that this is still a temporary restraining order and that the merits of the case will be heard at trial on December 13. That said, I will also note these sentences from the opinion, which addresses the question of whether Abbott had the power to forbid local governments from issuing mask mandates with the emergency powers granted to him under the Texas Disaster Act of 1975:

We hold Section 418.016(a) does not provide the Governor with the authority he claims to suspend statutes that concern local control over public health matters or to prohibit local restrictions on face coverings.

[…]

Applying the plain language of the Act, we conclude the City and County demonstrated a probable right to relief that the Governor’s power to suspend laws, orders, and rules under section 418.016(a) does not include the power to prohibit face-covering mandates that local governments may adopt to respond to public-health conditions or the power to suspend public-health statutes authorizing local governments to act for the benefit of public health.

[…]

Because the Governor possesses no inherent authority to suspend statutes under the Texas Constitution and he exceeded the scope of statutory authority granted to him by the Legislature, his actions in issuing Executive Order GA-38 were done without authority.

In between is a bunch of technical legal stuff that will make your eyes glaze over, but the bottom line is that this directly addresses the claim that the Governor’s emergency powers allow for him to suspend local orders that are intended to mitigate the disaster in question, an authority that would seem to contradict the whole purpose of a “Disaster Act”. We’ve discussed that several times here, and while that question will surely come up again in the trial court hearing and later on appeal, it’s good to see this basic idea affirmed here by the appellate court. May such common sense continue to prevail as this moves on to the trial stage. The Current has more.

Federal judge blocks Abbott’s ban on school mask mandates

Excellent news.

A federal judge ruled Wednesday that Gov. Greg Abbott’s executive order prohibiting mask mandates in schools violates the Americans with Disabilities Act — freeing local officials to again create their own rules.

The order comes after a monthslong legal dispute between parents, a disability rights organization and Texas officials over whether the state was violating the 1990 law, known as the ADA, by not allowing school districts to require masks. U.S. District Judge Lee Yeakel barred Attorney General Ken Paxton from enforcing Abbott’s order.

“The spread of COVID-19 poses an even greater risk for children with special health needs,” Yeakel said. “Children with certain underlying conditions who contract COVID-19 are more likely to experience severe acute biological effects and to require admission to a hospital and the hospital’s intensive-care unit.”

The judge said the governor’s order impedes children with disabilities from the benefits of public schools’ programs, services and activities to which they are entitled.

The advocacy group, Disability Rights Texas, filed the federal lawsuit on behalf of several Texan families in late August against Abbott, Paxton and Texas Education Agency Commissioner Mike Morath. It states that the governor’s order and the TEA’s enforcement of it deny children with disabilities access to public education as they are at high risk of illness and death from the virus.

Kym Davis Rogers, litigation attorney with Disability Rights Texas, said in a statement that the court found that Texas is not above federal law and state officials cannot prevent school districts from providing accommodations to students who are especially vulnerable to the risks of COVID-19.

“No student should be forced to make the choice of forfeiting their education or risking their health, and now they won’t have to,” Rogers said.

Rogers said she doesn’t rule out the state appealing the decision in the 5th U.S. Circuit Court of Appeals because the state has done so before, most recently with its new law that bans abortions after as early as six weeks.

[…]

In court documents, Ryan Kercher, the attorney representing the state, argued that neither the attorney general nor the state education agency were enforcing the executive order so they couldn’t be sued.

But Disability Rights Texas attorneys said the three were enforcing the order and provided the court with a letter that the TEA sent to the attorney general’s office. In it, the education agency listed school districts that appeared to be operating in violation of the governor’s order. The plaintiffs also noted how Paxton sued several school districts over requiring masks and sent “threatening” letters to districts telling them that they were violating the order.

This isn’t the first time state attorneys argued that Paxton and Abbott didn’t actually enforce the law. In an August lawsuit against the state over the mask order, Paxton made the same argument and indicated that it was up to local county prosecutors to enforce the order.

See here, here, and here for the background, and here for a copy of Judge Yeakel’s ruling. As the story notes, the US Department of Education is also doing an investigation into Texas’ mask mandate ban; it’s not clear to me what effect this ruling, if it stands, could have on that. Also as the story notes, Paxton had filed multiple lawsuits against school districts that had mask mandates, getting most if not all of them to stop. We’ll see what happens next with that.

I do expect the state to appeal to the Fifth Circuit, and why wouldn’t they? The Fifth Circuit gives them everything they ask for pretty much all of the time, whatever the facts or merits of the case in question. This is still a significant ruling, and we should always take the opportunity to revel in any defeat suffered by Greg Abbott and Ken Paxton. May this be the start of a very long losing streak. The DMN and the Chron have more.

People still support mask mandates

One more tidbit from the UT/Trib poll for October.

A majority of Texas voters support requiring masks at schools and indoor public places and allowing businesses to require their employees to be vaccinated, according to a new University of Texas/Texas Tribune poll.

This comes as Gov. Greg Abbott has banned vaccine requirements by all Texas entities, including private businesses and health care facilities, and mask mandates by local government and state agencies.

A survey of 1,200 registered voters in Texas showed that 57% of voters support mask requirements in indoor public spaces based on local conditions, while 58% support mask requirements for students and staff in public schools. Forty percent oppose the requirements at indoor public places and 39% oppose the requirements at schools.

Fifty-four percent of Texas voters also support allowing businesses to require employees to provide proof of vaccination or submit to frequent COVID-19 tests, compared to 43% who are opposed. Meanwhile, a slight plurality is opposed to the same requirements for customers: 47% support them, while 49% are against.

Similarly, 54% of voters support and 43% oppose allowing public schools to require staff to either provide proof of vaccination or submit to frequent testing. Texas voters are nearly split on requiring students to adhere to the same measures: 49% oppose the idea and 48% support it.

Texans also leaned in favor of requiring vaccinations for admission to large events or activities, with polls showing that 47% of voters favor the vaccine passports while 43% oppose them.

Voters were fairly evenly split on whether they supported allowing government entities to require vaccines or COVID-19 tests for employees. Just 50% supported the requirements while 46% opposed.

Overall, there is a wide partisan divide on the issue of mandates. While Democrats surveyed overwhelmingly support them, there is still significant opposition among Republicans.

“As a whole, the state looks more in favor of mitigation efforts than the policy, but amongst the majority party there’s really not much appetite for many of these mitigation efforts,” said Joshua Blank, research director at the Texas Politics Project.

That’s true, and it’s what I’d expect as that has been the general pattern on all things that have been politicized these days, but with a caveat. If you look at the bar charts they included to show the partisan breakdown for some of these questions, Democrats are more in favor than Republicans are opposed, and in general independents are in favor, though by modest margins. For example, on the question of whether businesses should be allowed to mandate vaccines for their employees, Democrats favor it by an 89-9 margin, independents favor it by 53-41, and Republicans oppose it by 72-26. That’s more than enough to give it a fairly solid majority overall.

You can see a few more examples in the story, some of which are closer calls, and you can see all of the crosstabs here. They hadn’t included that in previous poll stories, probably because they wanted to publish them all before they spoiled them by showing the data ahead of time. I’ve got another post in the works based on a couple of interesting bits I saw in there, but for now the takeaway is that a campaign that is harshly critical of Abbott and Paxton for their unrelenting obstruction on masking and vaccination will find some purchase. If nothing else, it will fire up the base, and for sure we’re going to need all of that we can get.