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Greg Abbott

The school situation remains a mess

It’s a mess of Greg Abbott’s making.

Some superintendents say that despite Abbott’s statements to the contrary, their ability to respond to the pandemic is still limited, and many of their questions have gone unanswered even as school is slated to start in the coming weeks. They are worried their decisions could result in consequences from the state, including cuts to funding, and some say they would prefer high-stakes decisions affecting student and employee health to stay with medical experts.

“We’re going to make our decisions based on local scientific data, and we’re working with the health authority. That’s our guide,” said Juan Cabrera, superintendent of the El Paso Independent School District. “Nobody on our board, including myself and my administration, are medical doctors, so I’m going to try to take their advice.”

After about 18 local health authorities issued orders delaying in-person instruction because of coronavirus concerns, Abbott said last week that those health officials cannot issue blanket orders preventing all schools in their jurisdictions from opening classrooms before the academic year begins. His statement backed nonbinding guidance from Attorney General Ken Paxton released earlier that week.

Abbott also said school districts could ask for more time to limit the number of students learning in classrooms, on a case-by-case basis, beyond the current eight-week maximum set by the Texas Education Agency. And he reminded school officials that they could move their start dates later in the year with a school board vote, as long as they make up the time. This, he said, gives local school boards the most authority to determine when and how it’s safe to have kids back.

The Texas Education Agency has not yet released any specifics on which districts will be able to receive waivers to limit in-person instruction beyond eight weeks or under what circumstances. But it said it will not fund school districts for unlawful school closures, worrying superintendents who want more certainty of state support while handling an unpredictable pandemic.

“After the eight weeks, there’s a threat to withhold funding if schools don’t have in-person learning. They’ve offered a waiver opportunity … but it takes it out of the hands of the local school district beyond the eight weeks, and that is not local control,” said Kevin Brown, executive director of the Texas Association of School Administrators and former superintendent of Alamo Heights ISD in San Antonio.

A spokesperson for Abbott, when reached for comment for this story, referred to the governor’s previous statements on the issue. Abbott has said that school boards are welcome to consult public health authorities as they make their decisions. And he said local health officials could shut down schools that have COVID-19 outbreaks after they reopen.

Some superintendents, especially in areas where the virus is rampant, balked at the idea of waiting for kids and teachers to get sick before shutting down their campuses in the middle of the year, instead of working with local health officials to close classrooms if cases spike again. And some still wondered: What options do they have if cases are still high after eight weeks?

“Districts, I think, are very concerned about creating these rolling situations where people come back on campus and then get sick and then everybody has to leave again,” said Joy Baskin, director of legal services for the Texas Association of School Boards, on a recent podcast explaining the state’s guidance.

See here, here, and here for the background. Basically, school districts are being told they cannot prioritize safety until they have proof that their schools are unsafe. If they take action that doesn’t conform with regulations that are not currently documented, they risk losing funding. Greg Abbott is the sole decider on these matters, and he has nothing new to say at this time. Any questions?

It’s like we don’t want any extra Congresspeople

As someone once said, where’s the outrage?

For months, as Texans have been asked to stay home to avoid the spread of the new coronavirus, Jennifer Edwards has been doing the rounds at gas stations in a trio of counties near the Texas-Louisiana border.

Volunteering as a census community organizer, the Tarleton State University professor reasoned that gas stations, like grocery stores, would continue to see foot traffic during the pandemic. Setting up a booth just outside the front doors offered her face time with essential workers to deliver an essential message — please fill out the census.

“When we’re meeting with people in front of the tractor supply or the dollar store or the gas station … the communication is focused on ‘Well when does it end, what’s the deadline?’” said Edwards, who had been sharing the pandemic-induced October deadline for counting every person living in the U.S. for the once-a-decade census.

But on Monday evening, the U.S. Census Bureau upended the timeline Edwards and hundreds of other organizers, volunteers and local officials had been working under. After previously stating the census would run through Oct. 31, the bureau announced it was cutting the count short by a month, moving up the deadline for responding to Sept. 30.

The October cutoff had offered organizers crucial overtime for the count after the coronavirus pandemic derailed a ground game for canvassing and outreach efforts that in some regions of the state had been in the works for years. Now, the earlier deadline is heightening risks that Texas will be undercounted and that some Texans, particularly those who are low-income or Hispanic, will be missed in the count as the coronavirus pandemic continues to ravage their communities.

The schedule change comes at a key point in the count. The bureau has started its door-to-door campaign to follow up with households that have not yet filled out the census online, by phone or by mail, but census workers won’t reach some communities in Texas, like the Rio Grande Valley, that are at the highest risk of being missed until next week.

“It seems like not only are they cutting back the time they’re giving themselves to do this nonresponse follow up, but they’re also allocating the least amount of time in the hardest-to-count places in the state,” said Lila Valencia, a senior demographer at the Texas Demographic Center.

This follows Donald Trump’s efforts to exclude certain people from the Census data for redistricting purposes, as well as the state’s refusal to pay for any effort to do a thorough Census count. It’s like there’s a conspiracy to keep Texas from getting the up to three additional members of Congress that it would be due if everything went as it should. And also, you know, billions and billions of federal money that our taxes contribute to that will instead flow to other states because the Census says we have a lot fewer people than we actually do. I get what Trump’s motivations are here. I have a much harder time understanding why this isn’t a problem for Greg Abbott and Dan Patrick and Ken Paxton and John Cornyn and Ted Cruz and every Republican running for Congress. Why do they all want to hurt Texas like this? It’s a question that should get asked, a lot.

Another lawsuit against Abbott over emergency orders

This one is a bit more serious due to the lack of Hotze and Woodfill, but it’s still not a great way to have the debate about this issue.

Five Republican Texas lawmakers are suing Gov. Greg Abbott over the state’s $295 million COVID-19 contact tracing contract to a small, little-known company, alleging the agreement is unconstitutional because it wasn’t competitively bid and because the funds should have been appropriated by the Legislature in a special session.

In the Travis Country district court suit filed Monday, State Reps. Mike Lang, Kyle Biederman, William Zedler, Steve Toth and state Sen. Bob Hall named as defendants Abbott, the Texas Department of State Health Services and the company awarded the contract, the Frisco-based MTX Group.

Abbott and Attorney General Ken Paxton have defended the contract. Abbott did not immediately respond to a request for comment.

The lawmakers are seeking a court order voiding the contract for lack of statutory authorization and deeming unconstitutional the governor’s application of the Texas Disaster Act of 1975, which gives him broad powers in the case of an emergency, in granting the contract.

“The Texas Constitution requires a separation of powers, and that separation leaves policy-making decisions with the Texas Legislature,” the lawsuit states. “These decisions are not changed by pandemics.”

Abbott has declined to convene a special session since March when the coronavirus pandemic began, instead leaning on his emergency powers to issue a series of sweeping executive orders governing what businesses can open, where people can gather in public, and mandating safety measures including wearing face coverings in public.

While the law has been used by governors for years, the time span of the coronavirus-related orders is unprecedented and raises questions about the durability of that legal justification.

As the story notes, the Supreme Court just rejected several Hotze lawsuits relating to executive emergency powers, saying he lacked standing. I don’t know if that is likely to be an issue in this case or not. I still agree with the basic premise that we need to have a robust debate about the parameters of the Texas Disaster Act, including when the Governor should be compelled to call a special session so that the Lege can be involved in the decision-making process. I also still think that this is a lousy way to have that debate, and while these five legislators have more gravitas than Hotze, that’s a low bar to clear. To put it another way, the anti-face mask and quarantine lobby still isn’t sending their best.

There’s no doubt that the contact tracng deal was a boondoggle, and I welcome all scrutiny on it. And I have to admit, as queasy as I am with settling these big questions about emergency powers by litigation, there isn’t much legislators can do on their own, given that they’re not in session and can’t be in session before January unless Abbott calls them into a session. I’m not sure what the right process for this should have been, given the speed and urgency of the crisis. The Lege very much needs to address these matters in the spring, but I’m leery of making any drastic changes to the status quo before then. In some ways, this is the best argument I’ve seen against our tradition of having a Legislature that only meets every two years. Some things just can’t wait, and we shouldn’t have to depend on the judgment of the Governor to fill in the gaps. I hope some of the brighter lights in our Legislature are thinking about all this. The Trib has more.

More on Abbott’s approval rating

Further evidence of decline.

Approval for Gov. Greg Abbott’s handling of the coronavirus pandemic continues to erode, according to a new poll from a consortium of universities.

The survey, conducted through Sunday by Harvard, Northeastern, Rutgers and Northwestern universities, found that 38 percent of Texans approve of the governor’s response to the health crisis, a steep decline from the 61 percent who were supportive in a similar poll in late April.

The authors said Republican governors in states that have seen recent surges, including Abbott, have seen declining approval for their countermeasures that closely mirror those suggested by President Donald Trump. Approval for Trump’s handling of the crisis dropped to 32 percent both nationally and in Texas, according to the poll.

“Across much of the South we see a tight coupling between approval of the president’s handling of the pandemic and approval of the governor’s performance during the pandemic,” they wrote.

[…]

The survey was conducted online between July 10 and July 26 and included 19,052 people from all 50 states and Washington, D.C. It had a margin of error of 6 percentage points.

The authors noted that new weights were given to respondents based on where they lived within the state, and that the results may therefore not be exactly comparable to past iterations. The consortium did six previous rounds of surveys, finding a steady drop in favorability for Abbott’s leadership amid the crisis.

A little googling tells me that this consortium is publishing its work on the covidstates.org website. The report for July is here. It’s interesting and it does correlate with the data that we have from Presidential polls, which don’t always include a question about Abbott’s approval, but it feels like its own thing, and I’m not sure how comparable it is to those other data points. But it does provide its own trend lines, so that’s good. How permanent or transient any of this is, and how much it will matter in 2022 is a question we can’t answer right now. So take this for what it’s worth and we’ll go from there.

An analysis of that Paxton opinion about schools and county health authorities

Short version: That’s just, like, his opinion, man.

Best mugshot ever

The law should mean what it says. Rule §97.6(h) of the Texas Administrative Code says: “The health authority is empowered to close any public or private child-care facility, school or other place of public or private assembly when in his or her opinion such closing is necessary to protect the public health; and such school or other place of public or private assembly shall not reopen until permitted by the health authority who caused its closure.” This law was invoked by the Harris County Health Authority this month , directing that K-12 schools in the county start operations entirely online until at least Sept. 7.

On Tuesday, Texas Attorney General Ken Paxton wrote an opinion that effectively invalidated Harris County’s control order and others. The Texas Education Agency accepted the opinion, and said it will defund schools that follow the orders. On Friday, Gov. Greg Abbott added his backing.

While the attorney general’s opinions are non-binding, they are entitled to some respect. So too, though, is the plain language of the law. I believe Paxton has it wrong and that his opinion is likely to kill people.

[…]

The law appears to be clear. The provision of the administrative code cited above gives the power to local health authorities. Despite this, Paxton concludes the law doesn’t mean what it says. He argues if read literally, the law would undercut limitations on the power of local health authorities he believes exist elsewhere in Texas law .

I wouldn’t give that argument a high grade. The “limitations” he cites would cripple local health authority’s power to effectively manage dangerous diseases that cannot survive on surfaces. More importantly, Paxton really can’t explain why Texas couldn’t give local health authorities, who have the authority to take steps such as quarantining an entire county, the (supposedly) limited powers that exist elsewhere and, just as the law says, the explicit power to close schools.

The factual assumptions underlying Paxton’s reading of Texas law are flawed. He writes before closing schools as a form of “area quarantine” (which isn’t the part of the statute the Harris County order relied on), the local health authority must demonstrate “reasonable cause to believe the school, or persons within the school, are actually contaminated by or infected with a communicable disease.”

That condition will exist the instant schools reopen.

See here, here, and here for the background. This too is one person’s opinion, in this case a law professor named Seth Chandler. What any of it actually means is uncertain until either someone sues or the counties and school districts all concede. Given his track record and the political stakes here, it’s quite rational to believe that Paxton is not the most trustworthy authority on this, but until a court gets involved he’s what we have. I hope the various county attorneys, as well as the counsel for the affected school districts, are reviewing this carefully and considering all their options.

Enforcing the mask order

Those of you who haven’t been wearing your mask when out in public, shame on you. And also, there may now be consequences for your dumb refusal to do the right thing.

Houston law enforcement officials will begin issuing fines and citations to people who do not comply with the state’s mask order, Mayor Sylvester Turner announced Monday.

The mandate from Gov. Greg Abbott requires nearly all Texans to wear face coverings in most public settings and has been in effect since early July.

Turner’s announcement comes as Houston experiences a slight dip in its COVID-19 hospitalization levels and a decline in the rate of positive tests, despite a sustained number of daily new cases. The mayor said police would continue to issue warnings at first, as Abbott’s order requires, before fining people $250 for a second offense.

“For months, we have been focusing on education and not citations, but now I am instructing the Houston Police Department to issue the necessary warnings and citations to anyone not wearing a mask in public if they do not meet the criteria for an exemption,” Turner said.

Police Chief Art Acevedo, who is appointed by Turner, agreed with the mayor’s order, saying it would help limit the spread of the coronavirus. He said HPD’s tally of infected and quarantined officers has grown “very rapidly,” with 108 testing positive and 64 awaiting test results.

[…]

The mayor in April instructed police not to issue fines or citations for Harris County Judge Lina Hidalgo’s mask order, winning favor among some of Hidalgo’s critics. Before Monday, he had told police to largely issue warnings when enforcing the governor’s order.

On the one hand, it’s a bit puzzling that the order hadn’t had the threat of a fine behind it before now. On the other hand, given the wishy-washy nature of Abbott’s order, it’s easy to understand why the city wouldn’t be all that interested in putting police resources into “enforcement” of that order. Certainly, the police union was not interested in enforcing the mask order (and yes, that was motivated by the HPOU president’s ridiculous animosity towards Judge Hidalgo), to whatever extent you give their preference weight. I honestly don’t know what difference this is going to make, but I welcome the change. We are moving in the right direction, it would be very nice to move a little faster in that direction, and whatever reasonable step we can take to advance we should take. And boy, do I wish we didn’t have to have debates like this. How much better it would be if people just understood what they need to do and did it.

SCOTX rejects multiple Hotze petitions

Some good news.

The Texas Supreme Court has refused to hear several challenges by a Houston conservative power broker to emergency orders on coronavirus issued by Gov. Greg Abbott and Harris County Judge Lina Hidalgo.

Without comment, the nine Republican justices on Friday denied a request that they review a trial court that upheld Hidalgo’s April 22 mask order.

The order required residents to wash hands before leaving home and wear masks, stay 6 feet away from each other and avoid touching their faces in public. For a time, Abbott, a Republican, prevented Hidalgo, a Democrat elected in 2018, from enforcing it. The governor later reversed course and issued his own mask order.

Experts said Friday they weren’t surprised that in five recent lawsuits, the state’s highest civil court has declined Dr. Steve Hotze’s demands that it step in and overturn Abbott and Hidalgo’s COVID-19 orders. Each time, the court ruled on procedural grounds.

Hotze, a staunch conservative who for decades has wielded influence with his “slate cards” telling Harris County voters whom to back in Republican primaries, said his bid to protect Texans’ state and federal constitutional rights will continue.

“We fight on,” he said. “It’s obvious to me some members of the Supreme Court just don’t want this case to come up. They don’t want to go against Abbott. Six of them were appointed by Abbott.”

See here for the background, and here for the one-line denial. This follows on the heels of an earlier denial over Abbott’s statewide mask order.

The Texas Supreme Court on Friday dismissed a lawsuit disputing Republican Governor Greg Abbott’s executive orders closing nonessential businesses during the Covid-19 pandemic, but one justice expressed concern he is improperly taking the role of state lawmakers.

The Republican-controlled high court dismissed without comment the lawsuit filed by lead plaintiff and Republican activist Dr. Steven Hotze for a lack of jurisdiction.

Justice John Devine agreed with the dismissal, concluding a lawsuit against the governor is the incorrect vehicle. Nonetheless, Devine said Abbott’s emergency actions are not “categorically immune” from review by the courts and he finds it “difficult to square” the governor’s orders and state law.

“I share relators’ concern in what they describe as ‘an improper delegation of legislative authority’ to the executive branch,” his five-page concurring opinion states. “During declared states of ‘disaster,’ the Texas Disaster Act of 1975 bestows upon the governor the power to issue executive orders that have ‘the force and effect of law.’ Disaster or not, the Texas Constitution doesn’t appear to contemplate any circumstances in which we may condone such consolidation of power.”

Devine, a Republican, said the constitution’s ban on a branch of government exercising another branch’s powers “is not simply a suggestion.”

“In the first article, it states: ‘No power of suspending laws in this state shall be exercised except by the Legislature,’” he wrote. “This provision means what it says. The judiciary may not suspend laws. Nor may the executive. Only the Legislature.”

The Texas Legislature is only in regular session once every two years for 140 calendar days beginning in January. Abbott has so far ignored calls by state lawmakers to call a month-long special session to replace his executive orders during the pandemic.

Devine wrote the court’s dismissal “should not be misperceived as a judicial kowtow” to Abbott, saying there is no “pause” button to the Texas Constitution. He expressed worry that more executive orders will come when a second wave of the virus hits, resulting in “short-term orders could continually escape” the court’s review.

See here for that background, and here for that denial. This recapitulates what I’ve been saying all along – there are serious questions to be asked about the Governor’s powers at this time and what the role of the Legislature should be, questions that I sincerely hope are addressed by the next Lege, but Steven Hotze and Jared Woodfill and their shambling evil Lawsuits R Us clown car is absolutely the wrong way to examine those questions. I would also add that SCOTX’s loopiest Justice John Devine is exactly the wrong person to be setting the outlines of this debate, but at least he did so in a concurring opinion. I’ll take what I can get at this point.

On a side note, in that first article Rice poli sci professor Mark Jones is quoted saying that in a 2015-2017 context, Greg Abbott very likely would have given more weight to the demands of the fringiest wingnuts in the Republican Party, because there would have been no political counterweight to them. But now, at a time when Donald Trump is at best running even with Joe Biden in the polls of Texas and the Democrats have a legitimate shot at taking the State House and knocking off a bunch of GOP members of Congress, some discretion on his part is the better part of valor. In other words, elections do have consequences.

Finally, since all news of bad things happening to Steven Hotze is good news, I was recently sent some relevant court documents by a very helpful reader that I will chare with you here. First, is this by a Harris County judge, issued on his own volition (the fancy Latin legal term for this is “sua sponte”), chiding Hotze and Woodfill for not properly serving all parties of his various lawsuits the relevant pleadings he’d been filing with SCOTX in a timely manner. Even more interesting is this one, filed by the Harris County Attorney on behalf of County Judge Lina Hidalgo and County Fire Marshal Laurie Christianson, accusing Hotze of filing multiple bullshit lawsuits against the county as a harassment tactic and asking for sanctions. Here’s a taste:

Hotze filed five lawsuits and two appeals against Judge Hidalgo in the last four months. Many of these cases are based on fabricated facts, and they all make identical constitutional challenges to the Texas Disaster Act. Based on Hotze’s own statements and actions, it is clear that he brought these duplicative suits for the improper purpose of harassing Judge Hidalgo.

Not only are these duplicative suits made for an improper purpose, but Hotze litigates them in a manner orchestrated to be as harassing as possible. Hotze presents all of his cases as urgent matters requiring emergency temporary restraining orders and emergency petitions for writ of mandamus to the Supreme Court. However, these cases are never urgent, have typically been pre-filed for days or weeks, are often set for hearing long after the orders they complain about have expired, and have nothing to do with science, liberty, or the Constitution. Their “urgency” is manufactured to deny Defendants due process by preventing them time to respond.

Hotze’s five lawsuits were designed to maximize delay and cost and create a never-ending conveyor belt of litigation using a six-step formula: (1) Hold a rally and generate negative media attention toward Judge Hidalgo, (2) solicit plaintiffs for a choose-your-own-adventure style lawsuit, (3) file a lawsuit, never serve it, then email opposing counsel about a hearing on a few hours’ notice, (4) make false claims, (5) amend, dismiss, or appeal before the court considers sanctions, and (6) start over with a new lawsuit and repeat the cycle.

It goes from there. It was filed in the 189th Civil Court, the same one whose judge issued that sua sponte order, and it requests “$10,000 in attorney’s fees and a conditional $10,000 in attorney’s fees if this matter is unsuccessfully appealed” on behalf of Hidalgo and Christianson in their official capacities. I have no idea what the odds of success of this motion are, but you do love to see it.

Revisiting the May elections

I’m ambivalent about this.

Most cities in Texas — from Galveston to Lubbock — moved their May elections to November under a pandemic-era decree by Gov. Greg Abbott.

But the choices facing voters will remain limited to candidates who filed for office months ago — at least for now.

State Rep. Mayes Middleton, a Galveston County Republican, wants to reopen the filing period for candidates to lead cities and other political jurisdictions, including school boards. He believes voters may have soured on incumbents facing little or no competition.

Middleton is asking Attorney General Ken Paxton whether the state should give candidates who want to run in a postponed local election until mid-August to file for a spot on the ballot.

“I think it’s also only fair that this occur because there are a lot of people that have been frankly unhappy with how some of the decisions… have been made in local government during this pandemic,” Middleton said.

The legal rub: Abbott’s March 18 order was silent on the filing deadline. But Abbott’s secretary of state, Ruth Hughs, wrote local officials that “the postponement does not have the effect of reopening candidate filings.”

Middleton believes that guidance is not supported by election law and Abbott’s order. Middleton, who chairs the arch-conservative Texas Freedom Caucus, contends in his July 2 letter to Paxton that Texas law clearly states that if the election day is changed or moved, the filing period rolls forward with it.

He said the ripple effects of a legal opinion by Paxton go well beyond proving greater scrutiny for elected officials who have issued shutdown orders or mask requirements, which have drawn the ire of many conservatives. Some local officials believe that tax rates adopted by cities for the coming fiscal year could greatly exceed what voters have the appetite for amid curtailed local tax revenues due to the pandemic.

I mean, I don’t agree with Mayes Middleton on much, and I think his motives for this action are screwy. But I confess that a part of me thinks that an election held in November, even if it was supposed to have been held in May but had to be postponed for whatever reason, should have a filing deadline that’s standard for a November election. On the other hand, the original filing deadline for the May 2 elections was February 14, more than a month before Abbott’s order that rescheduled the thing. As such, it’s hard to argue that people may have been unfairly excluded from filing. Obviously, conditions have changed, and I think there’s a valid case to be made that if these elections had been scheduled for November in the first place, there would be a very different lineup for them than what exists now. I think you can also make a valid case that the voters have it in their power to persuade the candidates they do have to prioritize the things they want now, as opposed to the things they would have wanted then.

On the related question of whether we should have regular elections in May at all, I’m also ambivalent. No question, turnout would be much greater in November elections, and as a general principle I think that’s preferable. But November elections, especially November elections in even-numbered years, are full of races with a lot more money and noise-making ability, which combine to drown out whatever local issues would be heard in a quieter context. It would be so much better if people simply took a greater interest in their local and school board elections, so that they could be held at any time and didn’t need the boost of a Presidential or gubernatorial election to get even semi-decent participation. I’d like to have a robust debate about this, but I fear that only the hardcore, vote-in-every-election types would be tuned in for it, and that would miss the point entirely. I don’t know what else to say.

One more thing:

Republican Cheryl Johnson, the Galveston County tax assessor, wrote Paxton in support of Middleton’s position. She said the pandemic has “opened the eyes” of Texans to potential government overreach, namely local tax rates that could soar as cities try to bridge budget shortfalls. Johnson wants officials considering tax hikes to feel the pressure of a campaign challenge.

Johnson noted that Senate Bill 2, signed into law by Abbott during the 2019 legislative session, requires cities to receive voter approval before levying taxes that would result in collections 3.5 percent higher than the previous year. But the bill contains a disaster provision that permits a city to collect more than twice as much for at least two years if any part of the city is declared a disaster area during the current tax year.

State and local officials are at odds over whether the coronavirus pandemic qualifies as a “disaster” to trigger this provision.

“I’m of the opinion that COVID-19 is not the type of disaster that would warrant the disaster provision of Senate Bill 2,” she said.

The Texas Municipal League says it conducted a survey of cities recently and found the “vast majority” plan to keep increased collections below the 3.5 percent threshold allowed by Senate Bill 2.

Yeah, sorry, if you don’t think what we’re in now counts as a “disaster”, then I’m afraid I just can’t take you seriously. SB2 was a terrible bill for many reasons, and this is one of them. But look, if you don’t want cities and counties to try to deal with their massive revenue shortfalls on their own, then there is a simple alternative, and that’s to push the Senate to pass the HEROES Act, which the House passed months ago, to provide fiscal relief to local governments for precisely this purpose. If you’re not down for that either, then I think we know all we need to know about your priorities.

Abbott finally speaks about schools

Of course, he mostly says weasel words.

Gov. Greg Abbott clarified Friday that Texas schools will be required to provide in-person instruction this fall, but that some districts may be eligible for extended waivers on a “case-by-case basis.”

In a letter signed jointly with fellow Republican state leaders, the governor said local health authorities do not have the power to shut down schools solely to prevent the spread of COVID-19.

The guidance, which does not appear to be legally binding, is the first detailed instruction from Abbott in the reopening plans. Earlier this week, Attorney General Ken Paxton and Education Commissioner Mike Morath said districts would not be able to close campuses for prevention purposes alone, and in fact could lose state funding should they try.

Currently, districts are allowed to delay in-person instruction for up to eight weeks.

“If any school district believes they need an extension beyond eight weeks due to COVID-19 related issues, the (Texas Education Agency) will review that request on a case-by-case basis,” the statement says.

The remarks do not give details about the requirements school districts must meet in order to suspend in-school learning. Even if districts reopen campuses, children in public schools across the state can remain at home, continue online-only classes and still receive course credit.

See here and here for the background. Basically, we don’t know anything today that we didn’t already know. Counties and school districts maybe have some flexibility to make their own decisions, but there are no objective criteria by which those decisions can be judged. Paxton’s opinion still doesn’t have the force of law, because Abbott still hasn’t updated his executive order, but it will take either a lawsuit or open defiance of the opinion to test that proposition. In the meantime, we have this deluded fantasy that in person classroom learning will be like it has been before while the pandemic is still raging. Meanwhile, other school employees fear for their health and safety, with no assurances that anyone is looking out for them. And oh yeah, it’s a lead-pipe cinch that people will die as a result of this. Good luck sorting it all out, fellow parents.

One more thing:

An Abbott spokesman did not respond to questions about whether the governor plans to follow-up with an executive order.

That should be carved into his goddam tombstone some day. What a feckless coward. The Trib has more.

The school situation remains a big ol’ mess

You can blame Greg Abbott for all this confusion.

After weeks of confusion and conflicting signals, Texas has settled into policies that effectively compel schools to reopen their classrooms this fall no later than eight weeks after the academic year begins, whether they want to or not.

Teachers, parents, school administrators and public health officials have been seeking clarity for weeks on how the state will approach reopening schools safely as coronavirus infections and deaths rise across Texas.

Gov. Greg Abbott has not responded directly to questions from reporters about who has the authority to order schools closed in areas hard-hit by the virus, and the Texas Education Agency has sent mixed messages on reopening guidelines.

But despite the lack of any formal announcement from the governor, the die was cast in in a rapid two-step process Tuesday. First, Texas Attorney General Ken Paxton released nonbinding legal guidance saying local public health officials do not have the power to preemptively require all schools in their jurisdictions to remain closed, even as COVID-19 cases continue to climb in many Texas hotspots.

Then, state education officials reversed an earlier decision by announcing they will not fund school districts that keep classrooms closed for longer than the state allows even if ordered to do so by a local health mandate. Taken together, the actions put school districts in the position of reopening classrooms on the state’s timetable or losing funds and risking potential litigation.

Educators and families must now once again rethink their back-to-school plans this fall. The education agency has given school districts up to eight weeks to limit the number of students permitted on their campuses, after which they must open classrooms to all students who want to attend.

That ninth week is looming large for superintendents who are not sure what the public health landscape will look like at that point. Now, they can’t depend on their local health officials to give them more time, without losing money.

“Starting in the ninth week of our respective school years, regardless of the status of the virus in our communities, as the guidance is written today, we would be faced with two options,” said Northside Superintendent Brian Woods in an interview with the San Antonio Express News editorial board Wednesday. “One would be to ignore a local health order, and in doing so likely put our students and staff and families at risk, or lose funding, which is essential to teaching and serving our families.”

At a school board meeting Tuesday night, Woods indicated he and other superintendents would consider filing a lawsuit seeking to keep their classrooms closed longer if necessary. Paxton’s decision to step into the fray weeks before the school year begins has prompted more questions than answers, including whether a deluge of lawsuits is expected to hit Texas courts demanding health mandates be revoked or enforced.

Emphasis mine, and see here for the background. The Chron’s Jacob Carpenter tries to make sense of this hash.

What is the impact of Paxton’s letter?

Paxton’s letter is not legally binding. The only way the local health authority orders can be negated is through an executive order issued by the governor or a judge’s ruling in a lawsuit.

As of now, Abbott has not issued an executive order declaring that local health authorities cannot mandate school closures, and nobody has filed a lawsuit challenging the local closure orders.

As a result, at this time the school closure mandates issued by local health authorities are legally valid and enforceable.

What did Morath do Tuesday?

Hours after Paxton published his letter, Morath issued new guidance saying public school districts risk losing state funding if they keep campuses shuttered solely as a result of a local health authority closure order.

Districts still can require students with at-home technology access to remain in online-only classes for up to the first eight weeks of the school year. School boards also can push back their school start dates.

If local school closure orders are legally valid, why did Morath say districts risk losing state funding if they follow closure orders?

Morath cited Paxton’s letter in issuing the new guidance on school funding.

“As a state agency, we will follow the Attorney General’s guidance,” Morath said in a statement. “Consequently, a blanket order closing schools does not constitute a legally issued closure order for purposes of funding solely remote instruction for an indefinite period of time.

However, another section of TEA guidance says the agency will continue to provide funding to districts that are forced to close campuses by an entity “authorized to issue such an order under state law” — and as of now, local health authorities have issued legal orders.

Essentially, the TEA has provided two potentially conflicting pieces of guidance.

Who can clear up this conflict?

The simplest answer: Abbott.

At any time, Abbott could issue an executive order that negates all local health orders, or he could announce he will allow the orders to stand.

Abbott has made no move in either direction.

Asked multiple times by the Houston Chronicle earlier this month whether he planned to allow local health officials to order school closures, the governor’s office never directly answered the question. Abbott’s staff also did not respond to a request for comment Tuesday following the release of Paxton’s letter.

Yes, our Governor continues to be basically useless. At this point, the best advice seems to be just wait and see what happens. Maybe Abbott revises his executive order. Maybe all the school districts and county health authorities cave. Maybe someone (or multiple someones) files a lawsuit – unfortunately, one of those someones is gonna be Jared Woodfill, so prepare yourself for the stupid – and a judge makes a ruling that forces the issue one way or another. It’s still the case that schools don’t have to open till September 8, which is what HISD is doing, and the first six weeks after that can be online-only. It’s after that it gets dicey. So sit tight and wait to see how it gets sorted out.

Paxton overrides county health orders on schools

So much concern for the children here.

Best mugshot ever

Local health officials do not have the authority to shut down all schools in their vicinity while COVID-19 cases rise, Texas Attorney General Ken Paxton said in nonbinding guidance Tuesday that contradicts what the Texas Education Agency has told school officials.

Shortly after Paxton’s announcement, the Texas Education Agency updated its guidance to say it will not fund school districts that keep classrooms closed because of a local health mandate, citing the attorney general’s letter. Districts can receive state funding if they obtain TEA’s permission to stay closed, as allowed for up to eight weeks with some restrictions.

The change represents an about-face for the agency, which previously said it would fund districts that remained closed under a mandate. It will impact schools in at least 16 local authorities, many in the most populous counties, that have issued school closure mandates in the past month.

Dallas County Judge Clay Jenkins, whose county is among those with a mandate to close schools, said local officials will continue to make decisions to keep students safe “regardless of what opinion General Paxton comes up with.”

“The only way that it would really screw things up is if Abbott tried to take away the control from the local groups,” Jenkins said.

The guidance is non-binding, but local health authorities could face lawsuits especially now that Paxton has weighed in. Paxton’s office declined to comment on whether it would sue local health officials that don’t retract mandates, saying it could not comment on hypothetical or potential litigation.

[…]

The governor’s executive order allowing all school districts to operate overrules local mandates to close, Paxton said. Local health officials have some authority to order schools closed if people in it are infected by COVID-19, but not as a preventive measure.

See here and here for the background. I don’t know what happens next – maybe the counties fold and rescind their orders, maybe someone files a lawsuit to force the issue, maybe we wait and see what happens when schools are supposed to start in a non-pandemic world – but it is clear that one person could end the confusion. The head of the TEA is hand-picked by Greg Abbott, after all, and one presumes Mike Morath would not have let the TEA issue that directive if Abbott was not aware of it. Plus, as noted in the story, Abbott’s own executive order is part of the reason the counties don’t have this authority, at least according to Ken Paxton. So we just need Greg Abbott to come forward and clarify things and

Gov. Greg Abbott’s office did not respond to a request to clarify this earlier this month.

Yeah. You know, whoever runs against Abbott in 2022, they need to make a video montage of all of the “Abbott did not respond to a request for comment” lines in every damn story about coronavirus. If there’s a single defining trait of his reign of error, that’s it. Reform Austin has more.

UPDATE: This says a lot:

Truly, we have a weak and feckless Governor.

Abbott officially extends early voting for November

It’s just by a week, but at least the announcement has been made early.

Gov. Greg Abbott on Monday extended the early voting period for the November election by six days, citing continued challenges posed by the coronavirus pandemic.

Early voting for the Nov. 3 election will now begin Oct. 13 instead of Oct. 19. The end date remains Oct. 30.

The extension of the early voting period is not a surprise. During a TV interview in late May, Abbott said he would add more time to the early voting period for the November election — as he did for the primary runoff election earlier this month — but did not elaborate.

Last week, Harris County Clerk Chris Hollins asked Abbott to provide more details so that election officials could have enough time to prepare. In a letter to the governor, Hollins requested that Abbott move the start date to Oct. 13 at the latest.

[…]

But the Monday announcement from the governor gave eligible mail-in voters more time to turn in their completed ballots in person if they would like to do so. Current law allows those voters to submit their ballots to the early voting clerk’s office in person instead of mailing them in — but only while polls are open on Election Day. Abbott’s latest move expands that option to the entire early voting period.

Democrats said Abbott’s latest moves were still not enough to create a safer environment for voting in November.

“Abbott’s decision to extend early voting by six days is exactly like his COVID-19 response: the bare minimum and not fully thought through,” state Democratic Party Chairman Gilberto Hinojosa said in a statement.

See here and here for the background. I certainly would have preferred a second extra week of early voting, but this is what we’re gonna get. Note that the extra week actually starts on Tuesday, because Monday the 12th is a holiday (Columbus Day), and early voting doesn’t happen on national holidays because some buildings that are used for early voting are closed.

The extra days for early voting will help, not as much as it could have, but it will help. And god knows, we really better be in an improved position with the virus by October, or we’ll have a whole lot of other big problems to be concerned with. I would expect that election administrators will try to extend voting hours where possible, and hopefully will work to have as many locations open as possible. The restriction on mobile voting sites still sucks and was an otherwise pointless attack on voting access, but there remains unresolved litigation about that, so who knows. The ability to drop off mail ballots in person any time during early voting (confession: I hadn’t known about the prior restriction on that) is good, and I’ll bet Harris County Clerk Chris Hollins sets up numerous dropoff locations.

This is the situation we have, and we have to make the best of it. Apply for a mail ballot if you’re 65 or older or if you believe you meet the disability requirement. Plan when and where you will vote, to try to avoid using the busier sites. Volunteer now to work the election if you can. Don’t be the jerk who refuses to wear a mask when voting. And keep raising hell about the overall response to the pandemic, because getting the infection rate down is by far our best friend. You can read Chris Hollins’ press release in response to this announcement here.

The contact tracing debacle

Let us never forget about this.

Just as coronavirus infections began rising a few weeks ago in Texas, contract workers hired by the state to track down exposed Texans were spending hours doing little or no work, received confusing or erroneous instructions and often could not give people the advice they expected, interviews and records indicate.

Health authorities around Texas also say they are running into technical snags with new contact tracing software the state has deployed, known as Texas Health Trace, saying it isn’t ready for widespread use in their counties.

The chaotic beginning and technical glitches — combined with exploding case counts and widespread testing delays — have undermined the goals of boosting COVID-19 monitoring statewide and the state’s massive deal for a privatized contact tracing workforce.

“I know that a lot of local health departments are still trying to figure out how to utilize that contract and some have decided to do the work on their own,” said David Lakey, chief medical officer at the University of Texas System and former commissioner of the Department of State Health Services (DSHS). “There is concern with local health department individuals I’ve talked to related to how they are going to benefit related to this large investment from the state.”

DSHS said problems identified by the Houston Chronicle have since been fixed and that “every week” more counties are using its software.

Gov. Greg Abbott’s office said months ago that robust contact tracing capacity would help Texas “box in” the coronavirus. But after the state reopened its economy, infections, hospitalizations and deaths skyrocketed, making it impossible for many health departments to keep up with contact tracing.

“When you kind of jump the gun a little bit and open too soon, and you skip the processes that need to be in place, this kind of thing happens,” Harris County Judge Lina Hidalgo said. “You might have the most successfully designed contact tracing program or you may not, but honestly it’s not gonna make a difference because you’re setting yourself up to fail.”

At the state level, Texas moved to ramp up and modernize contact tracing in May, when the Texas Health and Human Services Commission quietly awarded a $295 million contact tracing deal to little-known MTX Group, a tech startup that has a headquarters in North Texas. Abbott’s office has staunchly defended the emergency expenditure, but it’s been controversial from the get-go.

The bid for the work, which was never publicly posted, was awarded to MTX without input from top state leaders, and more than a dozen legislators subsequently called for the state to cancel the contract.

More recently, four people who performed contact tracing work for MTX or one of its partners raised questions about the tech company’s performance. They spoke to the Chronicle on condition of anonymity because they weren’t authorized to speak on the record about their employment. Three said they fielded only a handful of phone calls during several weeks in May and June.

You can read on for details of the various failures of the program as implemented, and you can see here for more on Texas Health Trace. My point is that having a certain number of contact tracers in place, a number that was never met, was one of the four conditions of reopening set by Greg Abbott. The real failure here, as has been the case with everything else, was the complete lack of effort to meet those metrics that were set out. The failure to do so led directly to the situation we’re in now. The fact that MTX was given a no-bid contract on Abbott’s say-so and no one else’s input is a separate issue, one that deserves a fuller exploration, but not necessarily a main cause of the failure. It’s possible to imagine a scenario in which a legitimate and fully-resourced company could have gotten this contract in a similar fashion and done a better job with it. The process would have still been a problem, but at least the result was okay. Here we had both a bad process and a bad outcome, and both of those need to be investigated. They also need to be hung around Greg Abbott’s neck from now until November of 2022.

Of course Abbott’s “Strike Force” are all Abbott donors

I have three things to say about this.

Members of Republican Gov. Greg Abbott’s coronavirus “strike force” have contributed hundreds of thousand of dollars to his re-election campaign as the number of COVID-19 cases and the death toll has mounted, records show.

Since naming members of the Strike Force to Open Texas in mid April, Abbott pulled in just over $640,000 from appointees or affiliated groups, according to his most recent campaign finance report on file with the Texas Ethics Commission. All had donated previously to Abbott, one of the most prodigious fundraisers in Texas political history.

The new contributions drew fire from ethics watchdogs and the Texas Democratic Party, the latter accusing Abbott of having “profited off this crisis” and calling on him to return the money.

[…]

Among the latest strike force donors who gave to Abbott in the last six weeks: former Astros owner Drayton McLane, $250,000; Texas restaurant operator Bobby Cox, $137,596; South Texas businessman Alonzo Cantu, $25,000; the Border Health PAC, closely tied to Cantu, $150,000; Sam Susser, chairman of BancAffliated, $50,000; Bruce Bugg, chairman of the Texas Transportation Commission, $25,000; and Balous Miller, owner of Bill Miller BBQ, $5,000, records show.

Susser, the banker and investor who recently gave Abbott $50,000, said he gives money to the governor not to influence any policy outcomes but because he believes the governor is “doing a terrific job leading our state.”

“If any of those critics would like to have my job, and can do it better, more power to them,” Susser said. “I try to do the best I can. It cost me a ton of time and money to do those things. And I’m not very empathetic to whatever criticism may be out there.”

1. Duh!

2. I mean, seriously, this is the way Abbott has operated since Day One. Donors get appointments, and appointees make donations. As it ever was, as it shall be.

3. Hey, remember when Abbott first named the Strike Force, which was supposed to help him reopen the economy now that we had that pesky virus under control? And it had a couple of medical expert types who were supposed to help develop a strategy for comprehensive testing and tracing? Good times, good times. What metric do you suppose Sam Susser is using to evaluate his and his teammates’ performance on the Strike Force? Because from where I sit, I don’t think it would be that hard to find people who would in fact have done a better job. The bar to clear is not very high.

A very early glimmer of some possibly good news

We may be finally bending the curve, thanks to people finally taking seriously the need to wear face masks in public.

Three weeks after Gov. Greg Abbott required Texans to wear masks, epidemiologists and disease modelers say they are cautiously optimistic that the mandate is helping the state turn a corner in its efforts to contain an outbreak that has killed more than 4,500 Texans.

Throughout the summer, Texas’ coronavirus outbreak became grimmer by the day and by almost every metric: case counts, hospitalizations, deaths. But in the past week or so, Abbott and some of the state’s public health officials began to see hope in the daily case counts as they appeared to stabilize.

A growing body of evidence points to widespread mask-wearing as an effective strategy for containing the virus, and one North Texas researcher’s statistical analysis published this week argued that local mask orders in the region reduced viral transmission enough to avoid a lockdown. The governor, who has faced blistering criticism for his handling of the pandemic from members of his own political party, immediately seized upon those findings in defense of his statewide order.

“A community lock down is not needed as long as masks & other distancing strategies are used,” Abbott wrote Monday on Twitter, citing the analysis by Rajesh Nandy, a professor of biostatistics and epidemiology at the University of North Texas Health Science Center.

But public health experts warn that more restrictive lockdowns may still be appropriate in the state’s hardest-hit regions, as the disease continues to infect about 10 times as many people each day compared with two months ago, ravaging some parts of the state more severely than others.

State data now appears to show new daily infections leveling off, albeit at nearly record highs. There were around 9,100 daily new cases of the virus on average over the past week. The state recorded its largest number of daily new cases July 15, at 10,791. On Thursday, that number was 9,507.

“The downside is even though we are approaching another plateau, we are at a much higher level than in May,” Nandy said.

Yes, it would be good news if the case rate stops going up. But it won’t truly be good news until the number of infections starts to go down, and then continues to go down. You know, like it has in New York and Europe and Asia and other places with generally functional governments. It’s when we get the virus down to levels at or below where we were when we first shut down back in March that we can truly contemplate things like safely sending kids back to school and reopening the economy. You’d think this would be something that would be better understood by the elected officials who have been so resistant to taking basic measures to fight COVID-19 – poll data consistently shows that the public understands this, even if they’re not always great about doing it in the absence of leadership – but clearly for some people, these things have to be learned the hard way. And as they are learning this, the hospitals are still at capacity, and could get overwhelmed at any time.

The irony there is that it may take another broad, mostly national shutdown to get to the point we want to get to. That won’t happen under this President, and if it’s still a necessary thing under the next one, then my god have we effed this up beyond all comprehension. In the meantime:

Now Starr County is at a dangerous “tipping point,” reporting an alarming number of new cases each day, data show. Starr County Memorial Hospital — the county’s only hospital — is overflowing with COVID-19 patients.

The county has been forced to form what is being compared to a so-called “death panel.” A county health board – which governs Starr Memorial – is set to authorize critical care guidelines Thursday that will help medical workers determine ways to allocate scarce medical resources on patients with the best chance to survive.

A committee will deem which COVID-19 patients are likely to die and send them home with family, Jose Vasquez, the county health authority, said during a news conference Tuesday.

“The situation is desperate,” Vasquez said. “We cannot continue functioning in the Starr County Memorial Hospital nor in our county in the way that things are going. The numbers are staggering.”

That’s the same Starr County that was once lauded for its low infection rate and ability to keep the virus under control. That was back when local officials had the authority to make and enforce shelter-in-place orders, before Greg Abbott took that authority away. Starr County now plans to issue a new shelter in place order, though of course they won’t be able to enforce it. Greg Abbott could let them enforce it, and he could let other local governments that want to take a step back in an effort to get their numbers down do so, but that’s not something he has any interest in doing. And so here we are.

Beer gardens get jerked around

First, we had this.

Saint Arnold Brewing announced Monday that it will temporarily close its beer garden and restaurant. The reason? Gov. Greg Abbott’s office ruled it is a bar, not a restaurant, and therefore should close according to the latest coronavirus shutdown guidelines.

As a response to the surge in virus cases in Texas, the governor backtracked on his reopening plan, ordering bars to close again on June 29. As most restaurants sell alcohol and most bars sell food, the state’s delineation between the two is a “51 percent rule”: if a venue’s alcohol sales make up 51 percent or more of its total revenue, it is considered a bar.

Brock Wagner, Saint Arnold’s founder and brewer, got a call from a local Texas Alcoholic Beverage Commission (TABC) agent on Friday, saying they had received a complaint that Saint Arnold had reopened in violation of the current pandemic orders. When calculating the brewery’s sales breakdown, the governor’s office took into account the beer Saint Arnold sells to its distributors. In addition to its on-premise operations, the Houston brewery has a solid retail presence across Texas and in Louisiana, producing about 70,000 barrels of beer last year.

“According to that, we are the world’s biggest bar,” said Wagner. He believes this ruling defies common sense, as it does not distinguish beer sold to distributors for retail purposes from a beer sold at the restaurant to a customer.

Wagner tried to appeal the decision and contact the governor’s team over the weekend, but was unsuccessful. The brewery announced the closure on Monday. (The governor’s office did not return a request for comment by press time.)

Saint Arnold is back to doing curbside and drive-through sales only; the shutdown of dine-in operations will result in lost jobs.

“They claim that they want to be opening Texas and keeping people at work,” said Wagner. “Instead there’s decisions like this, which are going to eliminate 75 jobs if we don’t get this reversed.”

That story was from July 13. We’re familiar with the plight of the bars that serve food but not enough food for them to be classified as restaurants. This is an arbitrary distinction, one that doesn’t make a lot of sense, and it’s having a bad effect on a lot of craft breweries. But then it looked like there was a breakthrough last week:

You still may not sit down in a bar for a drink, but you may be able to get served at a Texas brewery or other retail alcohol establishment and then sit down at an outdoor patio to enjoy your drink, provided social distancing is followed.

In a decision issued with little fanfare late last week, the Texas Alcoholic Beverage Commission began allowing retail and the manufacturers of alcohol beverages, like breweries, to reopen their outdoor patios to service again.

Community Impact Newspaper in Houston reported that TABC’s decision follows a direct appeal from St. Arnold’s Brewery, which had been forced to close its beer garden under Gov. Greg Abbott’s late June order that shut down all bars that generate more than 51% of their profits from alcohol sales.

TABC did not notify the news media of the change or make a public announcement about the new order. It has apparently also not been available to answer questions from owners who are confused about qualifying for change.

Still not a reprieve for the bars that had to close their dining rooms, but something. Unfortunately, it didn’t last.

Late Wednesday night, the Texas Alcohol Beverage Commission reversed a recent guideline change that would have let the state’s breweries reopen their patios for service.

The move is an abrupt about-face from last week, when the TABC signaled that brewers could pour product for patrons, so long as they quaffed their beers outside. Under that rule, breweries would have been clear to temporarily modify their licenses to exclude patios and beer gardens from their on-site premises, the Houston Chronicle reports.

However, in the latest turn, the TABC amended its guideline to say that modifying a business premises as unlicensed doesn’t exempt it from Gov. Greg Abbott’s June 26 executive order closing bars and other drinking establishments.

This is ridiculous. If we’ve decided that it’s safe for restaurants to operate at limited capacity, then it surely makes sense for outdoor patio restaurants, which is what these beer gardens are, to do so. Making a certain amount of revenue from alcohol sales should not prevent a restaurant from being treated like any other restaurant. We’re so in thrall to these ridiculous ancient laws and the all-powerful lobbies that keep them on the books that we’ve lost the plot. It just makes no sense at all. Like many businesses in Texas right now, craft breweries are having a rough time. Let’s not go out of our way to make it rougher.

UPDATE: And the pendulum has swung back in favor of beer gardens, though there are still issues with the 51% rule and the overall ability of small brewers to do their business. But it’s at least something.

There’s a lot of COVID litigation out there

Texas Lawyer surveys the landscape.

The COVID-19 pandemic has created a growing subset of new business litigation in Texas: companies suing the government over shutdown orders or definitions of essential versus nonessential businesses.

One of the latest examples to make headlines was a large group of bar owners who sued Texas Gov. Greg Abbott over his order that closed bars again because of the rising infection rate in the Lone Star State.

But Texas Lawyer’s research revealed that the bar litigation was at least the 15th similar lawsuit filed in the state since the onset of the pandemic in early March. It’s likely that there are even more cases filed in small or mid-sized cities in Texas.

One of the most interesting legal claims raised by this type of litigation is whether the governor has exceeded his authority under the Texas Disaster Act to suspend laws in the state, said Brad Nitschke, partner in Jackson Walker in Dallas, who has been tracking COVID-19 litigation.

“The executive is given a large toolbox to respond to emergency situations. To some extent, at least, it sort of has to be that way,” Nitschke said. “I think we are more accustomed in Texas to what that looks like for a hurricane or tornado, or a catastrophic drought.”

Using the same statute to respond to a pandemic is sort of like trying to put a square peg into a round hole, he added.

“It’s clear the governor has significant authority to act in the case of a disaster,” Nitschke said. “I think the unique circumstance of a pandemic like this one is going to give courts a chance to figure out what the outer limits of that authority may be.”

[…]

It will be tough for plaintiffs to win these sorts of cases, said Christy Drake-Adams, assistant general counsel of the Texas City Attorneys Association and the Texas Municipal League.

Drake-Adams noted that the league’s insurance risk pool has seen eight similar lawsuits against small and mid-sized Texas cities, which generally argue about the definition of essential versus nonessential businesses.

“They think they should have been allowed to continue operating, because they were an essential business,” explained Drake-Adams.

She said that government defendants who are fighting these types of lawsuits have a strong defense: That governmental immunity protects them from the claims.

“To the extent that plaintiffs are throwing in constitutional claims, I would say it’s pretty clear that the government has broad authority to act to protect the public health and to regulate in times of emergency, and that authority is expressly provided in law. It’s not clear that anyone’s constitutional rights have been violated as a result of those regulations,” Drake-Adams said.

There was a quote in there from Jared Woodfill about why the plaintiffs are right, but 1) screw that guy, and 2) we’ve heard from him plenty in the stories about each individual lawsuit he’s filed. This was the first time I’d seen an analysis from someone not connected to any of the lawsuits, though since cities or counties are the defendants in some of them, the perspective given here isn’t fully objective, either. Texas Lawyer reviewed the Hunton Andrews Kurth COVID-19 Complaint Tracker for the basis of this story; you can see media coverage of that tracker here. About half of the lawsuits involve the state (two), a state agency (one), or local governments (five), the rest are between private entities. I feel like it will be multiple years before there’s little to no litigation of interest of this nature to continue tracking.

County Clerk touts curbside voting, asks for more early voting

From the inbox:

Chris Hollins

On Friday, July 10, the last day of Early Voting during the July Primary Runoff Elections, the Harris County Clerk’s Office piloted Drive-Thru Voting as an additional option for voters to cast their ballot safely in the midst of the COVID-19 pandemic. This was the first time in Texas history that an elections office held Drive-Thru Voting, where many voters at a time could cast their ballot without leaving the comfort and safety of their car.

“My number one priority is to keep voters and poll workers safe,” said Harris County Clerk Chris Hollins. “The feedback we received from the Drive-Thru Voting pilot proves that voters felt safe exercising their right to vote and that it was an easy and efficient alternative to going inside a voting center. We are exploring options to expand this program for the November General Election at select locations as another method of voting during COVID-19.”

Voters raved about the experience. Of the 200 voters who voted at the Drive-Thru Voting site, 141 completed an optional survey reviewing the new service. Some wrote that Drive-Thru Voting was “easy to use” and others cited how the service “made voters feel safe.” One respondent even wrote that it was their “best voting experience EVER!”

Voters would overwhelmingly use the service again and recommend it to others. When asked on a scale of 0 through 10, with 10 being extremely likely, whether they would consider using the same service if it is provided again in the future, voters on average gave a score of 9.70. On the same scale, when asked whether they would recommend Drive-Thru Voting to another voter, voters on average gave a score of 9.66.

Fear of exposure to COVID-19 was the top reason for using Drive-Thru Voting. When asked why voters chose to vote using the Drive-Thru Voting service as opposed to the traditional walk-in voting method, 82 (58%) cited worries about health and safety in the midst of the pandemic. Other frequently mentioned reasons included the convenience of the service and pure curiosity about the experience of Drive-Thru Voting.

Drive-Thru Voting was piloted from 7:00 AM to 10:00 PM on Friday, July 10th, 2020, at Houston Community College – West Loop.

There’s a video at the link if you want to see it for yourself. Curbside has been done in some other locations, and it was specifically discussed as an option, in a much larger and more ambitious context, in this Chron story from April, by poli sci professor Bob Stein. There are limiting factors to doing this – the equipment is difficult to move, it’s labor intensive, and those combine to make the process slow things down for other voters, at least when this is done on an ad hoc basis. Done like this, where there’s a set number of designated locations for curbside might be more feasible, depending on how many people want to use it. I don’t want to come off like Debbie Downer here, this is a great example of outside-the-box thinking, it’s just that there are challenges that would need to be addressed to do this at anything approaching scale.

One thing that everyone would agree worked well for the July runoffs was expanded early voting. Hollins also sent a letter to Greg Abbott to remind him that he promised us more early voting in November as well.

Harris County Clerk Chris Hollins has asked Gov. Greg Abbott to extend the early voting period for the November general election to ensure residents can cast ballots safely during the COVID-19 pandemic.

In a letter to the governor Wednesday, Hollins asked for at least one additional week of balloting, and urged Abbott to set a schedule by the end of July. Early voting is scheduled to begin Oct. 19; Election Day is Nov. 3.

“It is crucial that elections officials and voters know the amount of time early voting will take place so that the many required complicated elections plans may be undertaken,” Hollins wrote. “Without that information, full planning and preparation for this important election cannot be undertaken.”

A spokesman for Abbott did not respond to a request for comment. Hollins noted that Abbott added extra days of early voting during the July primary runoffs, which were rescheduled from May because of the pandemic.

See here for your reminder about Abbott’s promise, and here for a copy of Hollins’ letter, which footnotes the Texas Tribune story that reported on Abbott’s extended early voting promise. I’d like to see early voting extended by two weeks, starting on October 5, but I’ll settle for one is that’s all Abbott is willing to give. It’s the best way – well, the second best way, after expanded voting by mail, which we’re not going to get – to keep the voters safe. Hollins is right, the sooner Abbott makes good on his promise, the better.

Why resign tomorrow when you can do it today?

News item:

After 15 years as a member of the Texas Supreme Court, Republican Justice Paul W. Green said he will retire in August — almost two and a half years before his term was set to end.

“I’m grateful to the people of Texas for electing me to the court three times, and it’s been a great honor and privilege to serve,” Green said in an interview. “It’s been a bittersweet kind of day.”

The San Antonio native is the court’s second in seniority, and Gov. Greg Abbott will choose his successor. All nine members are Republican and serve staggered six-year terms.

Green said that he is retiring early because it feels like the right time and to spend more time with his family.

“Well, I’m 68 years old, and there’s a lot of things I want to do still,” he said.

Green was reelected in 2016, and his term ends December 31, 2022.

There’s nothing unusual about this. Quite a few of our Supreme Court and Court of Criminal Appeals justices were originally appointed, following the resignation of a sitting Justice who still had time left in their term. But timing is everything, and that led the Texas Democratic Party to make an observation:

Today, Texas Supreme Court Justice Paul Green announced his plan to retire from the bench on August 31.

If Green follows through and resigns after August 24, his resignation will fail to trigger a special election, and failed Texas Republican Governor Greg Abbott will be able to choose his successor, who will be locked into a term ending in 2022.

However, if Green resigns immediately, it will allow the people of Texas to vote in a special election for the next justice on the Texas Supreme Court. There is an election coming up in November. With four other Supreme Court seats up in November, the people of Texas should be able to vote on Green’s successor and the entire composition of the court at that time.

The benefit to waiting till after August 24 is clear. Whoever gets appointed will have two full years as an incumbent, which certainly helps with fundraising, and will get to say “Re-elect” on their campaign literature in 2022. Also, if Justice Green were to resign now and open up his seat on the bench this November, that would put five of the nine seats on the ballot, the three that normally would come up plus Jane Bland, appointed earlier to fill an unexpired term for Place 6. This may be a remote concern, but having five seats up for election at once allows for the possibility that partisan control could flip, from 9-0 Republican to 5-4 Democratic. Scoff if you want, but that’s exactly what happened on several appeals courts in 2018, and with the state of the polls right now, it’s hardly out of the question.

You may say, partisan judicial elections are bad, we shouldn’t have the composition of a court flip because of a Presidential race, we need to move towards a merit-appointment-based system for picking judges, blah blah blah. We have this discussion every time Democrats win judicial elections in Texas. All I’m saying is that it Justice Green wants to call it a career, there’s no reason why he couldn’t step down on July 31, or August 15, instead of August 31. His choice of date is as much about partisan considerations as anything, and we should be honest about that.

UT prepares for fantasy football

I have no idea what they’re thinking.

The University of Texas at Austin will kick off the football season Sept. 5, albeit with a stadium open at half its capacity, athletics officials told ticket holders Monday.

While both NCAA and Big 12 Conference officials have yet announce firm decisions on how college football will proceed as schools grapple with the pandemic, Texas athletics director Chris Del Conte sent an email Monday to season ticket holders announcing the season would move forward as planned.

“I want you to know that as we are working toward hosting football games this season, our number one priority remains the health and safety of our student-athletes, staff and fans,” Del Conte wrote.

To align with capacity restrictions designated by Gov. Greg Abbott earlier this summer, Del Conte said seating at the Darrell K. Royal – Texas Memorial Stadium will be reduced to 50% to facilitate social distancing, meaning around 50,000 Longhorns could potentially be seated in stands next fall.

The decision comes on the heels of an outbreak among student athletes shortly after they arrived on campus to begin voluntary summer workouts. The school also reported its first death, a staff member, earlier this month. There have been more than 500 COVID-19 cases at UT-Austin since March, according to the school’s dashboard.

But officials have pushed forward with kicking off the football season as planned. The annual game between the Longhorns and Oklahoma Sooners occurs during the State Fair of Texas, which organizers canceled this year. Still, Del Conte said earlier this month that the game will be played.

I mean, I know that Greg Abbott says its OK, but there’s just no way on God’s field-turfed Earth that this makes any sense. I certainly hope that we will have this current outbreak under some control by September 5, but does anyone think that virus levels will be low enough to allow for this kind of mass gathering? Again, I remind you, professional sports is gingerly and haltingly trying to play games in front of empty stadia, in some cases with teams that have been and will continue to be completely isolated from the rest of the world. What makes the NCAA think they can do better than that?

(Can you imagine being the owner of a restaurant that’s classified as a bar, or a winery, or a craft brewery with a beer garden and reading this story? The risk assessment here is just off the charts wacko.)

(Apparently, the beer gardens can reopen now. If they are aware of this very quiet decision, anyway.)

OK, I get that Chris Del Conte needs to address his season ticket holders, and assure them that the Longhorns are on top of this situation, and that if by some miracle they can play football in front of fans this year, UT has a plan to accommodate as many of them as they can. But geez, this is amazingly tone deaf.

Meanwhile, in something closer to the real world.

The Southwestern Athletic Conference on Monday became the latest conference to move its fall athletic calendar to the spring of 2021 due to concerns related to the COVID-19 global pandemic. The safety of its student-athletes was at the forefront of the decision.

“We’re still going to play football. It’s just a matter of moving it to the spring,” Texas Southern football coach Clarence McKinney said. “I like the decision. It gives us a chance to slow down and come up with a true plan to protect our student-athletes.”

Texas Southern, along with Prairie View A&M, is part of the SWAC’s five-state footprint that includes schools in Louisiana, Mississippi, Alabama and Arkansas. Other fall sports impacted in the move are volleyball, cross country and soccer.

A part of the Football Championship Subdivision, the SWAC will go to a seven-game schedule in the spring of 2021, with the conference championship game hopefully to be played no later than April 30. Each football team will play six conference games (four divisional/two nondivisional) with an option to play one nonconference game.

I like their chances better than I like UT’s, I’ll say that much.

State GOP wraps up its historic convention

And what a convention it was.

Allen West, the firebrand former Florida congressman, has defeated Texas GOP Chairman James Dickey to lead the country’s largest state Republican Party.

West claimed victory shortly before 3:30 a.m. Monday, while Dickey conceded about an hour later. The developments came during an early morning round of voting among state Senate district caucuses at the party’s virtual convention.

“I wish Lt. Col. West the very best in this role,” Dickey, who had been running for a second full term, wrote on Facebook. “Thank you for the honor of serving as your Chair. Let’s win in November.”

West moved to Texas several years ago and became politically active here. His victory means an abrupt change in party leadership with less than four months until one of the most challenging elections that Texas Republicans are facing in a long time.

West’s campaign said Monday morning he would “immediately resume the responsibilities of the role and begin to implement his strategy to hold Texas.”

“I am honored and privileged that Republicans of Texas have selected me to Chair their party and to be at the helm during this coming election cycle,” West said in a statement. “We need to focus on maintaining the conservative policies that made Texas strong and drive voter outreach across the state.”

Yeah, that Alan West. Let’s just say that any hope the Texas GOP might eventually stumble their way towards a higher level of rationality and engagement with the 21st century will need to be reassessed.

West brought a high profile to the race and huge financial advantage, vastly out raising and outspending Dickey. While West stumped on building a more ambitious Texas GOP, he also courted support from some in the party who believe Dickey had grown too unwilling to stand up to state leaders when it came to the party’s legislative priorities and the scandal last year that forced House Speaker Dennis Bonnen into retirement.

But no issue overshadowed the closing weeks of the race like the party’s insistence on conducting an in-person convention in Houston despite the coronavirus pandemic. After the convention center operator nixed the party’s contract earlier this month, the party launched a legal battle to continue with an in-person convention. The party lost in the courts shortly before the convention was set to begin, leaving it with a short period to transition to a virtual gathering.

Despite promises that the party had a virtual backup plan all along, the convention opened Thursday with almost immediate technical problems, and the State Republican Executive Committee voted that night to pause the event for a day Friday to resolve the issues. When the convention came back Saturday, things were still rocky — delegates complained they had still not received credentials, committees took much longer than scheduled and livestreaming problems ruined speeches by some of the state’s top elected officials.

West largely stayed out of the convention debate until recent days, when he criticized Dickey for not having an adequate backup plan and questioned the voting technology for the virtual gathering. On Saturday afternoon, he joined calls for Dickey to halt the convention until every delegate could be credentialed.

There were issues, to be sure (more here). I actually think it’s a little bit unfair to blame them all on James Dickey – it was the party faithful that voted to have this thing in person, despite common sense and an eventual Supreme Court ruling – but the buck stops at the top, and there’s no excuse for not having a viable backup plan in place. I’m just saying I wouldn’t expect much better from the Allen West regime. Not my problem, obviously. Have fun sorting it all out, guys. The Statesman and Mother Jones have more.

Going after Abbott

Forward thinking is always good to see.

Hoping to harness the opposition to Gov. Greg Abbott’s handling of the coronavirus, several Texas Democratic strategists are launching a new political group to defeat him in 2022.

Their group, the Beat Abbott PAC, will raise money that will ultimately go to the Democratic nominee against Abbott in 2022, when he is up for a third term. Along the way, the PAC aims to build a small-dollar donor list that can help Democrats in the next election cycle and “hold Abbott accountable for his failure on COVID,” according to an announcement first shared with The Texas Tribune.

The PAC’s board includes Tory Gavito, president and co-founder of Way to Win; Ginny Goldman, founder and former executive director of the Texas Organizing Project; Zack Malitz, co-founder of Real Justice PAC and statewide field director for Beto O’Rourke’s 2018 U.S. Senate campaign; and Derrick Osobase, a veteran labor and political operative.

“We’re done listening to a Governor willing to let people die in order to maintain his good graces with the likes of Donald Trump and the right-wing of the Republican party,” Malitz, the PAC’s treasurer, said in a statement. “People in this state deserve better than a corrupt talking head who looks out only for himself and the one-percent. It’s time to beat him.”

[…]

Early speculation about potential Democratic challengers to Abbott in 2022 has centered on O’Rourke and either U.S. Rep. Joaquin Castro of San Antonio, or his twin brother, former presidential candidate Julián Castro. All three have been outspoken critics of his coronavirus response.

O’Rourke did not rule out a run in a late April interview, while Julián Castro, the former U.S. housing secretary and San Antonio mayor, held open the possibility during a Texas Tribune event Wednesday.

Castro told Tribune CEO Evan Smith that he is not currently thinking about running for office again, but when Smith asked if Castro was removing himself from consideration for the 2022 governor’s race, Castro flatly said no.

“I’m not aiming for anything right now, but I’ll see what happens in terms of whether I feel like I could add something and I want to run for office in the future,” Castro said. “I might.”

You can follow Beat Abbott on Twitter, of course. We know that the one thing Greg Abbott is really good at is building up a huge campaign treasury, so raising money to oppose him now makes all kinds of sense. It’s going to take tens of millions of dollars to do this. As for who to run against him, I’ve been at the front of the Julian 2022 parade for some time now, and he remains my first choice for that race. Beto’s a fine backup option, but you’re not going to be able to convince me that Julian isn’t the candidate with the best shot at winning. The sooner someone throws even an exploratory hat into the ring the better, so let’s have a PAC that will have their back ready to go by then.

We still need that equality bill in the Lege

That SCOTUS ruling was huge, but there’s still a lot of work to be done.

LGBTQ Texans marked a major victory Monday when the U.S. Supreme Court ruled that federal civil rights law prevents employment discrimination on the basis of sexual orientation or gender identity. But in Texas, which did not have such workplace safeguards, LGBTQ lawmakers and advocates say they are far from done fighting for other essential protections.

Employment discrimination protections, they say, are necessary but not sufficient for advancing the equal treatment of LGBTQ Texans. Thanks to Monday’s ruling, Texans can no longer be fired for their sexual orientation or gender identity, but there is no state law explicitly preventing landlords from refusing to rent homes to LGBTQ Texans, for example.

Members of the Texas House LGBTQ Caucus are setting their sights on a comprehensive set of nondiscrimination protections that would codify the employment protections in state law, as well as guarantee LGBTQ Texans equal access to housing, health care and other public accomodations.

It will not be an easy bill to pass.

[…]

“We can’t look at this as being a partisan or political issue — it’s a human issue,” said Democratic state Rep. Jessica González, vice chair of the LGBTQ Caucus. “And in order to create a change in mind, you need to create a change in heart.”

González announced in May that she would spearhead the fight for a comprehensive nondiscrimination bill during the next regular legislative session in 2021 with Republican state Reps. Sarah Davis of West University Place and Todd Hunter of Corpus Christi.

“We rolled it out early to start the conversation,” González said.

In pushing for comprehensive nondiscrimination protections, LGBTQ lawmakers and their allies are also making an economic case. Big businesses like Amazon and Google have been major advocates for LGBTQ Texans over the last few years, telling lawmakers that to attract the best talent to their Texas offices, they need to guarantee workers equal rights in their communities.

“It is the business community’s voice that has been one of the loudest and strongest advocates for the LGBT community over the years,” said Tina Cannon, executive director of the Austin LGBT Chamber of Commerce.

Still, advocates have acknowledged that Monday’s ruling, while exhilirating the LGBTQ community, may also stir up opposition.

“I do think this is going to galvanize the folks who don’t want us to be at the same level,” Shelly Skeen, a senior attorney with the LGBTQ rights group Lambda Legal, said during a virtual briefing after Monday’s ruling. “So we got even more work to do, but I think we got some great momentum behind us.”

LGBTQ Caucus members have already made major progress since 2017, when LGBTQ advocates spent much of the legislative session playing defense as they fought back a controversial “bathroom bill” that would have limited transgender Texans’ access to certain public spaces. It was championed by Lt. Gov. Dan Patrick and hardline conservative groups.

See here for more on that SCOTUS ruling, and here for more on the equality bill. Dems taking the House is probably the only path to this bill making it out of the lower chamber, where it will never get a hearing in the Senate. The best we can do is get everyone on the record, and fight like hell to elect more Democratic Senators in 2022, as well as un-electing Dan Patrick and Ken Paxton, by far the two biggest obstacles to getting a real equality bill enacted. Yeah, I’ve got Paxton there ahead of Greg Abbott, who I could sort of maybe imagine going with the flow if he gets enough pressure from business and the wingnut fringe has been somewhat neutered. Electing some Democrats to the State Supreme Court would also help, and that we can do this year as well. The things to remember are 1) this is going to take more than one session; 2) the more elections we win, the closer we will be able to get; and 3) we cannot ease up, not even a little, because it will always be possible to go backwards. Eyes on the prize, and get people elected to do the job. That’s what it is going to take.

TEA updates its school-opening guidance

They heard the outcry.

Facing growing backlash from teachers, parents and health officials, Texas education officials Friday relaxed a previous order that would have given public schools just three weeks from the start of the fall semester to reopen their classrooms for in-person instruction.

School districts will be allowed to delay on-campus instruction for at least four weeks, and ask for waivers to continue remote instruction for up to four additional weeks in areas hard hit by the coronavirus pandemic. During those second four weeks, districts must educate at least a small number of students on campus, and tell the state what public health conditions would allow them to bring more students into classrooms.

Local school boards in areas with a lot of community spread can also delay the start of the school year.

“Our objective is to get as many kids as possible on campus as long as it is safe,” said Texas Education Commissioner Mike Morath on a call with school superintendents Friday afternoon.”But we know on-campus instruction is really the best instructional setting for the vast majority of our students in Texas. Please don’t feel compelled to use this transition period unless your local conditions deem it necessary.”

The revised guidance offers school districts more options on reopening their schools. Last week, the Texas Education Agency had released more stringent guidelines requiring all school districts to offer on-campus instruction daily for all students who want it, except for a transition period of three weeks at the start of the school year.

Educator associations still say Texas isn’t going far enough to protect educators and parents. The Association of Texas Professional Educators released a statement calling the revision “insufficient” and lacking in “science-based metrics,” since it still requires schools to offer in-person instruction to students who need and want it daily.

Specifically, the guidance says districts that limit in-person instruction must provide devices and WiFi hotspots to students who need them. Students who do not have reliable access to technology must be allowed to learn in school every day. And during the second four weeks of state-allowed remote learning, districts must educate at least some students on campus, though they can restrict that number as they see fit.

“We demand that Gov. Abbott issue a statewide order that all school buildings remain closed and all instruction be provided remotely until the pandemic has clearly begun to subside and it is safe to reopen school buildings under strict safety standards,” Texas State Teachers Association President Ovidia Molina said in a statement Friday.

[…]

School districts may also, with permission from the state, choose high schools where students will receive part of their instruction on campus and part remotely at home for the entire school year. Students must learn on-campus for at least 40% of the days in each grading period, usually six or nine weeks long.

That option would be best for districts “if your health conditions are such where you really need to reduce the number of people on campus at any one time,” Morath said Friday. Some districts have already proposed bringing different groups of students into classrooms on alternating days or even weeks, and otherwise educating them remotely.

See here and here. The state is going to allocate more money for school districts to buy equipment for remote learning, which is a huge barrier for a lot of kids. Some counties like Dallas have issued local health advisories that would require schools to remain closed, which the TEA guidance is allowing for at this time. The AG’s office has released an opinion saying that local governments can’t force private religious schools to close. So there’s still a lot of moving parts.

The Chron covers the local angle.

In anticipation of a change in guidance, Houston ISD announced Wednesday that it plans to remain online-only for its first grading period, which lasts six weeks. District officials also said they plan to delay the start of school by two weeks, moving the first day of classes to Sept. 8.

HISD officials hope to reopen campuses Oct. 19, but Interim Superintendent Grenita Lathan said public health circumstances will dictate whether that happens.

Officials in Aldine and Alief ISDs said they would start in all-virtual classes for the first three weeks, while Fort Bend ISD leaders said they will stay online-only indefinitely, with exceptions for a small percentage of students.

Several other school districts have released plans for reopening campuses that, for now, do not include online-only plans in August. However, superintendents in Conroe, Humble and Spring Branch ISDs, among others, said they are monitoring public health conditions and could decide in the coming days to keep campuses closed.

Spring Branch Superintendent Jennifer Blaine, whose district released a reopening plan Wednesday, said she plans to make a closure decision no later than the end of the month. Blaine said she first wants to see results of a survey sent to parents this week asking whether they want in-person classes or online-only instruction for their children.

“We don’t want to string this out,” Blaine said. “People are anxious and nervous. People want to know what the plans are going to be for August.”

The about-face on hybrid models in high schools, however, likely will cause some districts to re-evaluate their plans.

We’ll see what happens with HISD. One criticism that has been levied by teachers’ organizations about the TEA plan at this time – and to be fair, I think the TEA plan is still a work in progress, they have already changed it in response to public feedback – is that there isn’t yet a set of objective, scientific metrics that will govern how and when schools will reopen. I agree that this is a major oversight, but I will also point out that having metrics isn’t enough. We had a set of objective, scientific metrics that most people thought were pretty decent that were supposed to guide how and when the state reopened, and look what happened there. It’s necessary to have these metrics, but it is very much not sufficient. You have to actually follow them, and to be willing to slow down, stop, or even reverse course if the metrics aren’t being met. And given the nature of this pandemic, and the by now completely well-known lag between the case rate, the hospitalization rate, and the death rate, you have to be willing to do those things before we get into a crisis situation. You have to be willing to do them at the first sign of trouble, not at the point where things have already gotten bad ans now you need to try to catch up. If we haven’t learned that lesson by now, then we really are a bunch of idiots who will let many people suffer and die for no good reason.

Anyway. If you want a broader perspective from teachers about the upcoming school year and what we can and should be doing, give a listen to this week’s Mom and Dad Are Fighting podcast, which is usually about parenting but this week talked to four teachers from different parts of the country. As one of them puts it, if we move ahead with opening schools before we have this virus under control, some number of kids, and some number of teachers – and I would add, some number of parents – are going to die as a result. Do we really want to do that?

Another lawsuit filed over mobile voting locations

Don’t know that there’s enough time for this to be heard, but it’s a good idea.

Mi Familia Vota, the Texas NAACP and two Texas voters this week filed a suit against the state over its election policies, alleging they discriminate against minority voters who are disproportionately hurt by the pandemic.

The suit, filed Thursday in San Antonio federal court, alleges that the state’s “insufficient” number of polling places and “limited and inaccessible” early voting locations will result in unsafe voting conditions and voter suppression.

“Texas proposes to rely on election policies that, during the pandemic, will create inordinate burdens on the right to vote,” the suit states. “The burden will be particularly high for Black and Latino voters. Without the relief this lawsuit requests, voters’ exercise of the franchise will be compromised.”

The wide-ranging suit seeks a court order to suspend the Texas law that limits mobile early voting sites, to force the state to extend the duration of early voting and allow the opening of additional polling places in counties where lines typically exceed 20 minutes.

There’s some additional detail in the Trib.

Abbott and Texas Secretary of State Ruth Hughs are named as defendants, but the suit targets some decisions that are ultimately up to local officials. The long list of changes the plaintiffs are seeking includes a month of early voting, an across-the-board mask mandate for anyone at a polling place and a suspension of rules that limit who can vote curbside without entering a polling place.

The plaintiffs also want to overturn a relatively new statewide election law that ended the long-established practice of setting up temporary or mobile early voting sites that could be moved around during the early voting period to reach as many voters as possible near where they live, work or go to school. They are asking the court to allow counties a temporary reprieve from that 2019 law, which is the target of a separate lawsuit filed last year.

To “ensure that polling sites are safe and of low risk to the health of all registered voters,” the suit also seeks that the state be ordered to open additional polling places and provide enough voting booths and workers to keep waits to less than 20 minutes.

(Polling places for general elections are ultimately designated by county commissioners courts.)

[…]

Without offering details, Abbott has previously indicated he will be ordering an expansion to the typical two-week early voting period for November. Extended early balloting has been one of the main ways in which state Republican leaders, who have vehemently opposed an expansion in voting by mail, have modified election processes during the pandemic.

I’m aware of two previous lawsuits filed over HB1888 from the last legislative session, which basically required that any early voting location had to be in operation for the entirity of early voting, so no more one-day popup locations on a college campus or at a senior center or whatever. That will have the effect of reducing voting locations, since the whole reason these had been temporary before was that there wasn’t enough money and/or poll workers for them to operate the whole time. Anyway, the TDP, DCCC, and DSCC filed one suit, and the Texas Young Democrats and Texas College Democrats filed the other, both last November. Both stories only referenced the TDP/DCCC/DSCC lawsuit, which maybe is an oversight and maybe means the second suit got tossed or joined with the first one. Far as I know, there’s been no court action on either of them, so I can’t say I expect a result from this one. But it can’t hurt to try.

Wineries and distilleries

I’m happy to keep beating this drum, but I’d really rather not have to.

The owners and patrons of Ironroot Republic Distillery in Denison hardly consider the business to be a bar in the traditional sense.

There’s no loud music or dancing. The doors closed at 5:30 p.m. most nights before the pandemic. On Saturdays, they closed at 3 p.m. Most of its business came from out-of-towners booking tours who wanted to sip the “World’s Best Bourbon,” as designated by the World Whiskies Awards.

Nonetheless, Ironroot Republic Distillery was shut down late last month with the rest of the bars in the state under Gov. Greg Abbott’s latest executive order. Meanwhile, other businesses like restaurants, theme parks and bowling alleys are still open with limited occupancy. Abbott’s order required any business that gets 51% or more of its revenue from alcohol sales to close.

“We’re tourism industry businesses, we’re not bars. So they shouldn’t treat us like bars,” said Dan Garrison, owner of another tasting room, Garrison Brothers Distillery in Hye, a community in the Texas Hill Country.

Distillery, winery and even some restaurant owners with high alcohol sales say they are unfairly being caught in the crossfire of the statewide bar shutdown, despite running starkly different operations from those Abbott warned against when he issued his latest executive order.

“We’re all struggling to survive right now,” Garrison said. “And we’re about to lose a heck of a growing industry if the governor doesn’t do something.”

[…]

When Ironroot Republic Distillery shut down, most of the people who booked tours could no longer purchase bottles unless they were local to the area, owner Robert Likarish said. Delivering or mailing liquor to consumers isn’t allowed unless there’s a restaurant attached and the business has a mixed beverage permit.

Because it’s in a rural area, it’s been a challenge to get traffic to the distillery for curbside pickup. And even if people do come, state law only allows distilleries to sell two bottles of liquor to a customer within 30 days.

“Essentially, all the things that we’d normally do to help sell and push movement of our product are gone,” Likarish said.

Spencer Whelan, executive director of the Texas Whiskey Association, said the governor’s executive orders didn’t take into account the business models of distilleries and similar businesses.

“It was just kind of generally a wide-swath brush applied to everybody in the alcohol manufacturing industry if they had any kind of retail onsite consumption,” Whelan said.

Whelan is calling for the two-bottle limit to be waived and Sunday sales be allowed. But more than anything, he is urging Abbott to allow age-verified delivery — so that distillers can sell their products across the state.

[…]

Wineries, which often have spacious outdoor vineyards and patios where patrons can spread out, say they’re also being unfairly targeted.

“We were highly impacted by the shutdown and the pandemic just because we were forced to basically close our tasting room, which is where 90% of our sales are generated,” Lost Draw Cellars owner Andrew Sides said.

After missing out on sales in April and May — the months that typically perform best — the Fredericksburg winery reopened at the beginning of June with new rules: All tastings were moved outside, and only one group of people who came together was allowed at a time.

But then, along with bars, the winery was forced to close.

Sides said he wished that Abbott’s order had been more specific — his permit is different from bars’ permits, and people are largely taking the wine offsite to consume at home. It’s frustrating for him when other similar businesses — like a local salsa maker who allows onsite testing — can stay open.

“The whole intent for most tasting rooms and wineries is for people to come and try wine, buy it and leave,” he said.

As you know, I agree with all of this, even more so for outdoor tasting rooms. Let the places that serve food continue to serve food for pickup and delivery, and even for limited outside seating if they have it. None of that is particularly risky, and it will help a business community that really needs it. And of course, I’m all for dismantling our ridiculous system of regulations on beer and liquor. (Turns out that ridiculous anti-competitive beer distribution laws aren’t just for Texas, too.) Let the distilleries sell more bottles, and let them all sell on Sunday. It seems like some of this ought to be an easy Yes for Abbott, so I’m kind of puzzled why he’s not taken any action to help these folks. Whatever the reason, I hope they get some help before it’s too late.

Here, have a COVID update

Things are going great.

Texas set yet another record for coronavirus deaths Thursday with 154 — the third day in a row above 100.

The previous record was July 8 when 112 deaths were logged, according to a data analysis by Hearst Newspapers that shows the state reported 105 deaths on Wednesday and 104 on Tuesday.

The streak in deaths comes two weeks after Republican Gov. Greg Abbott ordered most of the state’s 30 million residents to wear masks. Despite pressure from local authorities that he give back their ability to mandate stay-at-home orders, Abbott has insisted increased mask-wearing is the key.

Abbott told Houston’s Fox 26 on Thursday that “the last step that would ever be taken is to lock Texans back down” and said other measures would be taken before resorting to that.

“It seems like I get this question a thousand times a day, and there seem to be rumors out there about a looming shutdown,” Abbott said in the interview. “Let me tell you: There is no shutdown coming.”

It will take about three weeks, Abbott said, to see the effects of his mask mandate and his closure of bars in late June. Abbott claimed cases were flattening out in Harris County, though Hearst Newspapers’ analysis shows the county’s rolling average for new cases is more than three times higher than a month ago.

[…]

A new report from Kinsa, a company that uses internet-connected thermometers to predict the spread of diseases, showed that Texas’ rate of illness is spreading faster than those of other states. The company in the past few years has successfully anticipated outbreaks of the flu weeks ahead of the federal government.

The Kinsa data, which tracks whether an uncontrolled outbreak is likely using fever trends and other information, showed that the state is hitting above the threshold for the entirety of the past 30 days.

“This level of sustained, rampant disease transmission suggests that there is likely a lot more illness in the community than what has been reflected in the case numbers to date,” the company said in a press release Thursday. “In other words, there is no relief in store for Texas over the next few weeks, and we fear that the situation there may get much worse in the near-term.”

No, seriously, it’s just terrific.

A coronavirus patient in Anahuac was flown by helicopter to a hospital in El Campo — 120 miles away — because closer facilities could not take him.

Ambulances are waiting up to 10 hours to deliver patients to packed Hidalgo County emergency rooms.

And short-staffed hospitals in Midland and Odessa have had to turn away ailing COVID-19 patients from rural West Texas facilities that can’t offer the care they need.

As the tally of coronavirus infections climbs higher each day, Texas hospitals are taking extraordinary steps to make space for a surge of patients. Some facilities in South Texas say they are dangerously close to filling up, while hospitals elsewhere are taking precautionary measures to keep their numbers manageable.

Doctors warn of shortages of an antiviral drug that shows promise for treating COVID-19 patients. And epidemiologists say the state’s hospitals may be in for a longer, harder ride than places like New York, where hospitals were stretched to capacity in the spring and some parked refrigerated trailers outside to store bodies of people who died from COVID-19.

“It used to [be that] if one hospital got kind of overwhelmed … you would start transferring out ICU patients to other facilities that had ICU beds available,” said Dr. Robert Hancock, president of the Texas College of Emergency Physicians. “And there really is none of that now, because everybody’s in the same boat and they’re struggling to get their own patients admitted.”

You might say we’re red hot.

A document prepared for the White House Coronavirus Task Force but not publicized suggests more than a dozen states should revert to more stringent protective measures, limiting social gatherings to 10 people or fewer, closing bars and gyms and asking residents to wear masks at all times.

The document, dated July 14 and obtained by the Center for Public Integrity, says 18 states are in the “red zone” for COVID-19 cases, meaning they had more than 100 new cases per 100,000 population last week. Eleven states are in the “red zone” for test positivity, meaning more than 10 percent of diagnostic test results came back positive.

It includes county-level data and reflects the insistence of the Trump administration that states and counties should take the lead in responding to the coronavirus. The document has been shared within the federal government but does not appear to be posted publicly.

Dr. Ashish Jha, director of the Harvard Global Health Institute, said he thought the information and recommendations were mostly good.

“The fact that it’s not public makes no sense to me,” Jha said Thursday. “Why are we hiding this information from the American people? This should be published and updated every day.”

[…]

The 18 states that are included in the red zone for cases in the document are: Alabama, Arkansas, Arizona, California, Florida, Georgia, Idaho, Iowa, Kansas, Louisiana, Mississippi, North Carolina, Nevada, Oklahoma, South Carolina, Tennessee, Texas and Utah.

The 11 states that are in the red zone for test positivity are Alabama, Arizona, Florida, Georgia, Idaho, Louisiana, Mississippi, Nevada, South Carolina, Texas and Washington.

In May, the World Health Organization recommended that governments make sure test positivity rates were at 5 percent or lower for 14 days before reopening. A COVID-19 tracker from Johns Hopkins University shows that 33 states were above that recommended positivity as of July 16.

“If the test positivity rate is above 10 percent, that means we’re not doing a good job mitigating the outbreak,” said Jessica Malaty Rivera, science communication lead at the COVID Tracking Project, a volunteer organization launched by journalists from The Atlantic. “Ideally we want the test positivity rate to be below 3 percent, because that shows that we’re suppressing COVID-19.”

But don’t worry, Greg Abbott is on it.

As the number of new coronavirus cases in Texas continues to rise and hospitals grow more crowded, Gov. Greg Abbott said Thursday there is no statewide shutdown looming.

Abbott said last week that if the spread of the virus didn’t slow, “the next step would have to be a lockdown.” But in a television interview Thursday, he said that there have been rumors of such a move and stressed that they were not true.

“Let me tell you, there is no shutdown coming,” he told KRIV-TV in Houston.

Abbott pointed to measures he’s taken in recent weeks, including a statewide mask mandate and an order shutting down bars, to slow the spread of the virus. It will take a few weeks to see a reversal in coronavirus case surges, he said.

He has repeatedly stressed this week that, if people wear masks, he’ll be able to avoid shutting down the state. On Wednesday, he told KPRC-TV in Houston that it seems like people ask him about a shutdown “like a thousand times a day.”

“People are panicking, thinking I’m about to shut down Texas again,” he said. “The answer is no. That is not the goal. I’ve been abundantly clear.”

To also be abundantly clear, Abbott is correct that it will take a bit of time for the mask order and other interventions to work, just as there was a lag between the increasing case rate and subsequent increases in hospitalizations and deaths (not that we responded in time for them, but never mind that right now). He is also correct that universal face mask wearing would be a big help, though it may not be enough at this point, and he’s fighting headwinds from Donald Trump and his fellow Republicans on that score. And if we really want to be clear, we need to remember that Abbott mostly speaks in riddles these days, so we turn to an expert in the field for true clarity:

Yes, that’s the kind of straight talk you get from Greg Abbott.

Lawmakers quickly discovered something remarkable. It was possible to stare the man in the eyes, to speak with him for a half-hour or more, and walk away with no better idea of where he stood on important legislative matters. He seemed unwilling to speak forthrightly about nearly anything, drawing a veil around his positions, lest he alienate some key legislator or interest group.

When Abbott did make himself clear, it was to issue marching orders to those who had no reason to follow them, or to punish those who had defied him. “There was no comparison to Perry. [Abbott’s] concept of governing is ordering people around,” Republican state representative Sarah Davis told me in 2018. “He came into the regular session and kind of chided us, and then was absent for the rest of the session.”

And his public statements often contradicted his private ones. Publicly, Abbott endorsed the infamous anti-transgender “bathroom bill” in the 2017 session and pretended to advocate for its passage. But in private he reassured business groups—who worried the state would be boycotted by lucrative conventions and sports tournaments—that the bill would never pass. He was publicly accused of that duplicity by Republican state representative Byron Cook in 2018. The governor’s office has never addressed it.

[…]

Fast forward a few years, through 130,000 American deaths from the coronavirus, at least 3,500 of them from Texas so far, and the onset of the worst economic circumstances since the Great Depression. Now Abbott’s governing style is under strain. Arguably, the root cause of the current crisis is his tendency to talk a lot without saying much and his propensity to take the path of least resistance regardless of the circumstances, especially when confronted by the inchoate demands of the Republican party’s right wing. This modus operandi is on display every time Abbott gets in front of a television camera. But as we see more and more of it, the artifice is becoming more clear. Abbott’s disapproval numbers have been rising just a bit, even as other governors have seen a surge of popularity during the crisis.

Here, we could talk about Abbott’s quadruple-backflip on mask mandates; the time he issued a statewide lockdown disguised under a bureaucratic name while insisting it wasn’t one, before clarifying that it was the next day; the Shelley Luther saga, which saw him ordain that violators of his shutdown order should be punished with fines and jail time only to blame local officials for enforcing it, before retroactively nullifying what he had expressly commanded; or the way he opened the state for business before fixing the problems the lockdown was designed to address.

But instead, let’s consider a small but important test Abbott recently faced, one that seems instructive. Abbott’s party had long been planning to hold its state convention in Houston, one of the nation’s biggest coronavirus hot spots, which would have brought some six thousand attendees, many of them older and especially vulnerable to the virus, from all around the state for a crowded three-day fete. An in-person convention was a virtual guarantee that some delegates and service workers would get infected and possibly die, and that Houston’s seemingly potent strain of the virus would be spread around the state.

It was an incredibly bad idea that Abbott’s party nonetheless seemed hell-bent on pursuing. What did the governor have to say about it? Would he speak up, in an attempt to save the lives of his own party’s activists? “You’re the top Republican in the state, governor,” said an anchor for KDFW in Dallas on July 6, after Houston mayor Sylvester Turner begged the party to call off the gathering, then canceled it two days later. “What do you think should happen?”

The governor’s answer: “I know that the executive committee for the Republican Party of Texas have been talking about this. I think they continue to talk about it, and they weigh all of the consequences and the public health and measures … They’ll make a decision.”

The anchor persisted: “You don’t want to weigh in on what you think should happen?”

The governor paused and then gave his answer: “Obviously I think whatever happens—whether it be, listen, this convention or any action that anybody takes—we’re at a time with the outbreak of the coronavirus where public safety needs to be a paramount concern, and make sure that whoever does anything and whatever they do, they need to do to reduce the spread of the coronavirus.”

Huh?

A day later, an anchor for KENS in San Antonio tried a different tack: “Will you be attending in person?” Abbott dissembled, so the anchor tried again. “Yeah, listen, as for myself, as well as for everybody else,” Abbott said, “we will continue to see what the standards are that will be issued by the State Republican Executive Committee, by the state Republican Party to determine what the possibility will be for being able to attend.” To determine what the possibility will be for being able to attend.

Not only could Abbott not say whether he thought the convention was a good idea, he couldn’t even say whether he would be there. The interview went out during the KENS five o’clock broadcast. Not half an hour later, during a meeting of the SREC, the party’s executive director announced that elected officials would be pre-recording messages instead of giving in-person speeches. Abbott surely knew this important fact when he was on the air.

I hope this clears everything up.

Federal judge rules GOP can have its in person convention

Unbelievable.

A federal judge on Friday ruled that Mayor Sylvester Turner and Houston First Corp. must allow the Texas Republican Party to proceed with an in-person convention at the George R. Brown Convention Center, though the party now only intends to use the facility as a backup option.

Judge Lynn Hughes of the Southern District of Texas found the city had infringed upon the Texas GOP’s constitutional rights by canceling the convention, which initially was set to run from Thursday through Saturday before Turner ordered Houston First, the city’s convention agency, to nix it.

Hughes gave the party the option of using the convention center this weekend and next, according to Jared Woodfill, an attorney for Houston conservative activist Steve Hotze, who initially filed the lawsuit with a handful of other plaintiffs.

The party began its convention online Thursday but encountered numerous technical difficulties, forcing officials to postpone the event until Saturday. The party joined Hotze’s lawsuit Friday “to provide a last-resort method in-person if we needed it to secure our national election obligations,” Chairman James Dickey said in a statement following Hughes’ ruling. He said the party still “is on track to hold its convention online.”

Party officials will elect their party chair and select delegates for the national Republican convention at the state convention.

“Our online convention provides the greatest opportunity for as many delegates who want to participate in the convention as possible,” Dickey said. “We learned a hard lesson yesterday and with this win today, if for any reason there is an issue tomorrow, we know that we have a single location where, with the necessary SREC authorizations, we could” elect delegates to the national convention.

Turner in a statement blasted the party for its legal efforts to proceed with the convention, and said the city and Houston First would appeal upon receiving a written order from Hughes.

“We are in the midst of a pandemic, a public health crisis. More people are being admitted to our hospitals and ICUs, and more people are dying,” Turner said. “The State Republican Executive Committee is being totally irresponsible in continuing to push for an indoor, in-person convention. This reflects a total disregard for the health and safety of employees and people in our city.”

[…]

Hughes, in granting the Texas GOP an injunction that bars Turner from canceling the event, agreed with the argument by Hotze and the party that Turner’s move to cancel the convention “at the last minute” deprived party members “of their right to express their political beliefs, and make core political determinations,” a right protected by the First Amendment.

In a court filing Friday, Woodfill wrote that the party “has attempted a virtual convention and found that it is an unworkable platform.”

“Accordingly, the Republican Party of Texas has no choice but to seek relief from the Court to allow the Republican Party of Texas to prepare for the upcoming election season,” Woodfill wrote.

See here and here for some background. The plaintiffs knew which judge to pick, you have to give them credit for that. The judge bought the argument that the late cancellation of the convention, which came after they had considered but rejected changing to an online convention, which Mayor Turner begged them to reconsider, plus the GOP’s complete inability to get Zoom to work, meant that their rights were being infringed. Putting it another way:

The city and Houston First will appeal, so we’ll see what happens. Even on the Republican side, this was a bit controversial:

Before Friday’s ruling, Texas GOP Chairman James Dickey said the party was still working toward resuming the virtual convention Saturday.

“Today we have been hard at work for hours already on Plan A and Plan B and Plan C,” Dickey said during an interview with Texas Values. “We are going to make sure that we can move forward with our convention virtually tomorrow.”

[…]

Dickey’s chairmanship is on the line at the convention, where he faces a serious challenge from Allen West, the former Florida congressman. The election is tentatively scheduled for Sunday.

West has mostly stayed out of the debate over holding the convention in person, though he has increasingly questioned Dickey over the voting technology for the virtual meeting. And earlier Friday, West’s team seemed to reach a boiling point when word got out that the party was making a last-ditch legal push to join Hotze’s lawsuit.

“It is beyond belief that Chairman Dickey and the RPT allowed a foreseeable catastrophic failure such as this to unfold,” West lawyer Clyde Siebman wrote in a letter to Dickey. “Colonel West grew to doubt that it was by mere negligence but continued to give fellow Republicans the benefit of the doubt — until today.”

The party’s 11th-hour participation in the lawsuit “proves an intent to disenfranchise large blocks of grassroot Republicans across Texas,” Siebman added.

I don’t know what’s going to happen at this point, but my advice is to avoid downtown until this is over. And pray for those workers whose lives are being put in danger.

We’re still not doing great with the Census

There’s still time, but we have a lot of work to do.

Despite an extended deadline, local government cash infusions and grassroots campaigns to improve Houston’s 2020 census response rate, almost half of Houston households are still missing from the official count.

As of July 5, 52.5% of Houston’s estimated 2.32 million residents have completed the decennial survey, according to the most recent census data. In Harris County, the response has been about 56 percent.

But Houston is not alone. Across the country, many other large metropolitan areas are also struggling to get their populations counted, reporting similar self-response rates to Houston’s. In Los Angeles, the household response rate is 51.6%, while Chicago polls higher at 54.5%, and 53.1% in New York City.

Other cities in Texas have slightly greater household response rates so far, with Austin hovering around 60.4%, Fort Worth at 58.9%, and Dallas at 53.4%.

Texas ranks 40th in state census response, according to recent census findings. The state’s response rate of 56.7% lags behind the national rate of 61.9%. In 2010, the response rate was slightly higher at both the state and national levels, according to a recent report from Understanding Houston, which analyzed census data. The state had a 64.4% self-response rate compared with a national self-response rate of 66.5%.

With the deadline extended to Oct. 31, the hope is that more Texans will complete the survey, pulling the response rate up.

[…]

A 2019 study by Lopez Negrete Communications found that one helpful tool for ensuring people participate was through community action— which has become increasingly difficult with stay-at-home orders in place. Traditional forms of influence noted in the report include churches, schools, public events and community health clinics, yet many of these cultural and community centers remain closed.

It’s not hard to see why it’s been a challenge to get people to do the Census. If we can’t go door to door and can’t engage with the community, there’s only so much that can be done. It’s bad enough that the Lege didn’t appropriate any money for Census outreach, now we have Greg Abbott’s lousy handling of the pandemic acting as headwinds. Maybe we’ll be lucky and things will improve enough by October to make some more progress. I sure hope so.

Censuring Abbott

An amusing sideline, if nothing else.

Republicans in eight different Texas counties have now voted to censure Gov. Greg Abbott for his order requiring Texans to wear face coverings and take other protective measures as COVID-19 spreads throughout the state.

Over the weekend, the Henderson County Republican Party Executive Committee, just west of Tyler, held an emergency meeting to censure Abbott, a Republican, for not calling the Texas Legislature into a special session to help manage the COVID-19 emergency.

Since July 4, seven other county Republican Party Executive Committees around the state have approved censures of Abbott, including in Montgomery County, where they voted 40-0 on the censure.

The Montgomery County Republican Executive Committee’s censure resolution says Abbott has acted with “disregard to the Texas Constitution,” pointing to the mandated mask requirement for people in counties with at least 20 positive cases, limiting gatherings and the closing of bars across the state.

It’s similar to a censure resolution passed by Ector County Republicans in the Odessa-Midland area.

“The Ector County Republican Executive Board decided it would be a fitting day for us to send a clear message to Governor Abbott,” the party wrote on its Facebook page. “A message that we will no longer sit quietly while he over reaches his authority again, again, and again.”

I noted the Ector County resolution when it happened. Here’s the list so far, according to the sidebar:

Montgomery County
Ector County
Llano County
Harrison County
Denton County
Hood County
Eastland County
Henderson County

The ones who are arguing that Abbott needs to call a special session and involve the Legislature in some of these decisions are raising a fair point that deserves better elucidation than a Steven Hotze lawsuit. The ones that are basically an expression of “but I don’t wanna wear a mask!” can go pound sand, while wearing a mask. I think that about covers it.

The GOP convention is off to a great start

Ain’t technology great?

Getting the virtual state convention up and running “has not been a walk in the park,” said Republican Party of Texas Chair James Dickey in a Facebook Live chat Wednesday evening.

Glitches related to credentialing had yet to be ironed out Thursday, preventing the party from initiating the business at hand. The live feed displayed text stating “We are at ease” and that everyone would be notified when the credentialing emails had been sent.

The frustration was evident in the social media comments.

“Has anyone received their credentials,” asked one person.

“We didn’t get ANYTHING after the registration confirmation. Feeling shut out & silenced,” posted another person.

“Still no credentials … This is crazy,” wrote a third delegate.

And yet another participant had words of blame for the party’s executive committee, writing, “If you weren’t watching during the last couple of SREC meetings, you should watch them. It is the failure to act that has brought us to this online meeting. Three and a half hour meeting to decide nothing. See which SREC were driving the train off the cliff by their interruptions and antics. If SREC members can’t remember parliamentary procedure, Heaven help us when it comes to the meeting of the convention. If SREC can’t properly use the system, who will thousands of others. Like always, in was not everyone’s fault. See if you were happy with your SREC’s interruptions and actions. Maybe yours were good ones … maybe yours needs to be changed. Make that decision while we wait.”

Never wanting to miss an opportunity to poke at the competition, the Democratic Party of Texas sent out a news release encouraging reporters to watch reruns of last month’s Democratic state convention while waiting for the GOP to fix its technical glitches.

Maybe should have spent more time preparing, and less time in court? Just a thought.

Ah, well, at least Greg Abbott got a warm reception for his keynote speech.

Gov. Greg Abbott delivered a firm defense Thursday of his coronavirus response to delegates at the Texas GOP convention who even he acknowledged have grown agitated with him.

Abbott addressed the discontent head-on as the virtual convention got underway Thursday afternoon, starting with the statewide mask requirement that he issued earlier this month. Since then, several Republican county leaders, including in some of the state’s biggest red counties, have voted to censure the governor.

“Now I know that many of all you are frustrated — so am I,” Abbott said in a video message to the delegates. “I know that many of you do not like the mask requirement — I don’t either. It is the last thing that I wanted to do.

“Actually the next to the last,” Abbott added. “The last thing that any of us want is to lock Texas back down again.”

Coronavirus has surged in recent weeks across the state, and Abbott sought to impress upon the delegates how dire the situation has become.

“Each day the facts get worse,” he said. “If we don’t slow this disease quickly, our hospitals will get overrun, and I fear it will even inflict some of the people that I’m talking to right now.”

Why the facts have gotten worse each day is left as an exercise for the reader.

UPDATE: The state GOP is gonna take today to try to fix stuff, and then resume the convention tomorrow.

Is it time to step back?

It’s not a question of whether we want to do this, it’s whether we need to.

Mayor Sylvester Turner

Houston leaders are calling for another two-week shutdown as dozens of Army personnel are set to arrive Monday to help fight a virus that continues to set record hospitalizations and deaths in the Texas Medical Center.

Mayor Sylvester Turner said it’s time for the city of Houston to “step back,” as regional cases rose to 63,864 on Sunday — up 1,596 from the day before. There have been 646 deaths in the Houston area. Positive results are coming back for about 16 percent of Texas test-takers.

“Let’s look at the numbers, look at the data, see where things are,” Turner said over the weekend. “And then gradually, move forward again.”

Harris County Judge Lina Hidalgo advocated an immediate stay-home order.

“We need to stick with it this time until the hospitalization curve comes down, not just flattens,” she tweeted Sunday. “Many communities that persevered in that way are reopening for the long haul. Let’s learn from that & not make the same mistake twice.”

[…]

While Hidalgo issued a stay-at-home order in March, Abbott has since taken over decisions on whether to open or close businesses and has refused to allow local officials to make decisions on the matter. Hidalgo’s office has unsuccessfully petitioned the governor for power to issue more restrictions as COVID-19 hospitalizations spiked.

But on Friday afternoon, Abbott, too, said that he could consider expanding which nonessential businesses would shut down should the pandemic continue to worsen.

“If we do not slow the spread of COVID-19 … the next step would have to be a lockdown,” the governor told KLBK-TV in Lubbock.

Let’s be clear, nobody wants to do this. It will be devastating to the businesses that have been able to reopen (whether they should have been allowed to or not), and people will lose jobs as a result at a time when extended unemployment benefits and other fiscal stimulus to help people tide themselves over are being held hostage by the Republicans. The problem is that we are at the point that we thought we’d been able to avoid when we shut down the first time, with the death rate spiking and the hospitals overloaded. There may be no other way to try to slow this thing down, short of building a time machine and going two months in the past to force Greg Abbott to allow local face mask orders and a more deliberate reopening strategy. But here we are, and unless there’s a sudden flattening or downward trend in the numbers real soon, I don’t know what other choice there is. Say it with me now: This didn’t have to happen. It’s Greg Abbott’s fault that it did happen.

Schools get an in person opening reprieve

It started with this.

Texas will give school districts more flexibility to keep their school buildings closed to in-person instruction this fall as coronavirus cases continue to rise, Gov. Greg Abbott told a Houston television station Tuesday.

Public health guidance released last week indicated that school districts had to stay virtual for up to three weeks after their start dates, so they could get their safety protocols ironed out before bringing more students to campus. If they stayed closed longer than that, they would lose state funding.

Abbott on Tuesday said that time would be extended. His comment comes on the heels of a tumultuous week, after state education officials released guidance last Tuesday requiring districts to offer in-person instruction for five days a week to all parents who want it.

“I think Mike Morath, the commissioner of education, is expected to announce a longer period of time for online learning at the beginning of the school year, up to the flexibility at the local level,” Abbott said to KTRK. “This is going to have to be a local-level decision, but there will be great latitude and flexibility provided at the local level.”

The news, which Abbott said would be finalized in the next few days, will likely come as a relief to superintendents and educators asking the state for more flexibility on when and how they reopen school buildings. Some local health officials, including in El Paso and Laredo, had already demanded that schools in their areas start the year with virtual learning until cases go down.

And some larger, urban school districts, including San Antonio Independent School District, are planning to push their start dates later and keep all students online for three weeks, in order to avoid reopening school buildings as COVID-19 cases and hospitalizations surge.

See here for the background. Bowing to reality, we got this yesterday.

Local public health officials will be able to keep Texas schools closed for in-person instruction this fall without risking state education funding, a Texas Education Agency spokesperson confirmed to The Texas Tribune Wednesday.

Last week, the state’s education agency released an order requiring schools to open their buildings to in-person instruction five days a week for all students who want it. The order gives districts a transition period of just three weeks at the start of the year to hold classes virtually and get their safety plans in place before allowing students back on campuses. After the three-week transition, districts that stay entirely virtual would risk losing funding.

But TEA officials confirmed Wednesday they would continue to fund school districts if local health officials order them to stay closed, as long as they offer remote instruction for all students.

[…]

A TEA spokesperson told the Tribune that school superintendents and school boards cannot make the decision to stay entirely virtual for longer than three weeks without a mandate from public health officials.

Some school districts, including San Antonio Independent School District, are moving their start dates to later in August and then starting their school years entirely virtually for three weeks.

And later in the day, HISD followed suit.

Houston ISD plans to delay the start of its school year until Sept. 8, and remain in online-only classes for at least the first six weeks of school, keeping students and teachers home during that time, district officials said Wednesday.

Interim Superintendent Grenita Lathan, speaking to a group of parent-teacher organization leaders, said decisions about returning to in-person instruction “will be based on what the health threat level is” in the area. While district leaders hope to reopen facilities on Oct. 19, that decision could depend on orders issued by local health authorities or Gov. Greg Abbott.

“Right now, it is just not possible for us to do (reopen campuses), and I’m sorry that’s the situation,” Lathan said. “We moved too fast in the city and state as it relates to reopening.”

For now, the district’s 200,000-plus students will receive a mix of live instruction delivered via video conferencing and online coursework they can complete on their own time. Daily attendance will be tracked, with students considered present if they participate in live instruction, use the district’s online learning platform or submit completed assignments.

The district’s school board still must vote on delaying the start of the school year. HISD’s current 2020-21 calendar calls for resuming classes on Aug. 24. No school board meetings are scheduled for this month.

Six weeks is longer than three weeks, but as the story notes the forthcoming updated guidelines from the TEA are expected to allow for that. I can’t find it now, but there was a graphic some folks were sharing on Twitter that showed how we had closed all the schools when the COVID-19 case rate was way lower than it is now. I know we need to get the kids back into school for a whole range of reasons, and I certainly want my own kids to go back, but it doesn’t make any sense to do that until it’s safe. At this point, we’re doing what we had already done in March, kicking the can down the road and hoping things will be better in the future. That was briefly true at the time, but then, well, you know. Still better than sending kids into schools that aren’t ready to have them there in a safe fashion. We’ll see where it goes from here.

State Supreme Court denies GOP effort to force convention to happen

Denied.

The Texas Supreme Court on Monday rejected the state Republican Party’s appeal of a lower court’s decision regarding its in-person Houston convention, all but ensuring that Mayor Sylvester Turner’s move to cancel the event will stand.

In an unsigned “per curiam” opinion, the court ruled that while the Texas GOP has the constitutional right to hold a convention, “those rights do not allow it to simply commandeer use” of the George R. Brown Convention Center, where the event was set to take place Thursday through Saturday.

“Houston First’s only duty to allow the party use of the center for its convention is under the terms of the parties’ agreement, not a constitution,” the opinion stated.

[…]

The Supreme Court also rejected a petition for a writ of mandamus — a court order requiring the city to reverse the cancellation — from Steve Hotze, a Houston Republican activist who challenged the convention cancellation along with three other plaintiffs.

Justice John Devine filed the lone dissenting opinion, arguing that the court had standing to rule on the Texas GOP’s case and that Houston First breached its contract with the party by canceling. Devine also dissented from the court’s decision to deny Hotze’s petition.

Meanwhile, Justice Jeff Boyd decided not to participate in the decision. He is one of four justices whom the Texas Democratic Party called on to recuse from the case, due to their sponsorship of the convention. The other three justices — Chief Justice Nathan Hecht and Justices Jane Bland and Brett Busby — opted not to recuse themselves.

See here, here, and here for the background. The ruling was more or less along the lines of that AG brief that supported the city’s position, that this was a matter of contract law, not election law. This was a writ of mandamus, asking for a quick ruling from SCOTX without waiting for the district court to issue a judgment. The denial of the writ means that the case goes back to the district court, but since this shindig was supposed to start on Friday – indeed, some preliminaries are already underway, presumably in virtual fashion – there ain’t much time for that. For their sake, I sure hope the RPT has its contingency plans for an online convention ready to go. You know, like the TDP had for its convention back in March. Mayor Turner’s statement is herer, and the Trib, the Press, and the DMN have more.

UPDATE: It’s official, the GOP will have a virtual convention. Here’s the updated Chron story.