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SCOTx puts San Antonio ISD’s vaccine mandate on pause

Ken Paxton finally gets what he wants.

The Texas Supreme Court temporarily halted San Antonio Independent School District’s staff vaccine mandate on Thursday, a day before the deadline for all employees to get vaccinated against COVID-19.

The ruling comes two weeks after a Bexar County judge denied the state’s request for a temporary injunction to stop the staff vaccine mandate. Texas Attorney General Ken Paxton’s office appealed that decision to the 4th Court of Appeals and also requested the court temporarily block the mandate while it considers Paxton’s appeal.

The 4th Court of Appeals denied the attorney general’s request to temporarily block the vaccine mandate. Paxton then requested the Texas Supreme Court step in and halt the mandate, which it did Thursday while stating the court’s decision is not a reflection “on the merits of the state’s claims.” The appeals court still has to rule on the state’s appeal of the temporary injunction that was denied by the Bexar County judge on Oct. 1.

[…]

While the Supreme Court’s ruling means SAISD must pause its vaccine mandate, the district said in a statement that it will continue to work with health care providers to offer vaccines to any employees, students, and families who want them.

“This is especially important as we anticipate the availability of the Pfizer vaccine for 5-11-year-old children in the next month. We remain committed to believing it’s the right thing to do,” the district said in the statement. “We are extremely proud of our efforts in providing abundant access to this life-saving protocol to all of our employees and the broader SAISD community. Based on the science, we continue to feel strongly that these vaccines help us keep our staff and students as healthy as possible and in the classroom, where learning happens best, and in giving our families stability.”

See here, here, and here for the background. Next up would be a hearing in district court on the merits of the state’s request for an injunction, followed by another round of appeals. The hope remains that in this time, whether the mandate is allowed to be enforced or not, some number of SAISD employees get vaccinated who wouldn’t have done so otherwise. If that happens, it was all worth it. The Trib has more.

The Constitutional amendments

Hey, remember how in odd numbered years there are some number of constitutional amendments to vote on in November? This is the one thing that guarantees you have a reason to turn out regardless of what your city or school district is doing. Reform Austin runs down this year’s tableau. I’m going to zoom in on two of them, one of which I think is good and one of which I think is bad.

Proposition 3 (SJR 27)

What it says: “The constitutional amendment to prohibit this state or a political subdivision of this state from prohibiting or limiting religious services of religious organizations.”

What it means:  Proposition 3 would amend Article 1 of the Texas constitution by adding a new section to prohibit the state or any political subdivision from enacting a law, rule, order, or proclamation that limits religious services or organizations. Arguments against this amendment cite COVID as one valid reason to suspend religious services, approving this proposition would prevent authorities from banning this type of events even during a worldwide pandemic.

Proposition 4 (SJR 47)

What it says: The constitutional amendment changing the eligibility requirements for a justice of the supreme court, a judge of the court of criminal appeals, a justice of a court of appeals, and a district judge.”

What it means: The amendment would change the eligibility requirements for the following judicial offices: a justice of the supreme court, a judge of the court of criminal appeals, a justice of a court of appeals, and a district judge.

New requirements would include:

  • Candidates should be residents of Texas as well as citizens of the United States;
  • Candidates should have 10 years of experience in Texas as a practicing lawyer or judge of a state or county court for candidates of the supreme court, Texas Court of Criminal Appeals, or a court of appeals;
  • Candidates should have  8 years of experience in Texas as a practicing lawyer or judge of a state or county court for candidates of a district court;
  • It would disqualify candidates if their license to practice law was revoked or suspended during experience requirement; and
  • These requirements would be applied to individuals elected or appointed to a term beginning after January 1, 2025.

You can probably guess which one I think is which, but just so we’re clear I’ll be voting for Prop 4 and against Prop 3. I suppose given the recent shadow docket rulings from SCOTUS about local restrictions on religious services during COVID that Prop 3 isn’t actually doing anything that isn’t already the law, but it’s still a bad idea and I refuse to put it in our overstuffed Constitution.

Beyond that, none of the remaining bunch looks all that bad to me. Progress Texas endorses all but Prop 3 endorses five of the eight, opposing 3, 4, and 5. I noted during the session that the one thing missing this time around was an ugly fight over a nasty amendment – on that front at least, it was pretty boring – and you can see why. What do you think about these proposals?

UPDATE: The Trib has more.

UPDATE: I swear, when I looked at the Progress Texas page, I saw Yes for Props 4 and 5. Either I just misread it or they had an error. I actually think those props are OK, though I understand the objections. I’ll have to think about it some more.

Endorsement watch: Vote No on Prop 3

Yes, there are Constitutional amendments on the ballot this fall. Most of them are pretty innocuous, but one of them is not, and you should vote No on it.

Proposition 3, on this year’s ballot, would enact a constitutional amendment barring any Texas jurisdiction from adopting any limits on religious services. The Texas Freedom to Worship Act, passed this year in the regular legislative session, after lawmakers, including all but three senators and all Republicans in the House and nearly half its Democrats, voted to forbid government officials from requiring churches to cancel or limit services when disaster strikes.

The idea was a bad one as a statute, and even worse as an amendment to the Texas Constitution, which would mean not even lawmakers could act to limit public worship in the face of a health emergency.

It could have severe “unintended consequences,” Rice University political scientist Mark Jones told us.

If state or local officials needed to close a church even temporarily due to fire damage or a nearby chemical spill, the congregation could simply refuse.

The amendment is also unnecessary. For decades, courts have recognized religious freedom, especially when it comes to freedom to worship as one chooses, as one of the U.S. Constitution’s most powerful protections. The Supreme Court ruled in November, for instance, that New York Gov. Andrew Cuomo’s order limiting congregations to 10 or 25 worshippers in areas of New York City with high infection rates violated the First Amendment. As of April, the high court had ruled five consecutive times that California’s pandemic-related limits on religious services were illegal.

But even so, the court has never gone so far as saying that no state interests can ever justify limiting religious services in public. Some dangers are just too large, and restrictions sufficiently reasonable, for such a blanket approach to make sense. Many faith leaders agree, and spoke out last spring against the legislation.

I’ve got a longer look at the Constitutional amendments here, and this one just stands out as being a Bad Idea. (No, I don’t know why it attracted so much Democratic support. Ask your Rep and your Senator how they voted on this and why.) I expect this will pass – these things usually do – but that doesn’t mean you should help it. The Chron doesn’t address the other seven propositions, all of which I’m fine with, in this piece. They may do so later, but if not take a look at my other post and see the links there for more guidance.

El Paso mask mandate blocked

This is a city mask mandate. It does not affect the El Paso ISD mask mandate.

El Paso’s mandate requiring masks in indoor spaces, including schools, was ended on Thursday by the 8th Court of Appeals. The ruling does not apply to the El Paso Independent School District, which is involved in a separate court case.

The appeals court said the city’s mask mandate had to be lifted while it hears an appeal by the Texas Attorney General’s Office of a lower court ruling upholding the mandate. The ruling was based on Texas Supreme Court orders on similar mask mandates in San Antonio and Bexar County, the city said in a news release.

The mask mandate by Dr. Hector Ocaranza, the El Paso health authority, has been in effect since Aug. 17. The city’s rate of newly reported COVID-19 cases has declined in that time.

[…]

Despite Thursday’s ruling, the county’s largest district can continue to require students, teachers and staff to wear masks because it is part of a multiple school district lawsuit challenging Abbott’s executive order.

The El Paso ISD Board of Trustees voted on Aug. 17 to join a suit join a suit La Joya ISD and five other districts filed against Abbott days earlier in Travis County. The lawsuit now includes nearly two dozen districts, including a community college. EPISD was the only El Paso area district to join.

A Travis County judge granted the parties a temporary injunction against Abbott, allowing the districts to continue requiring masks. The governor is contesting that ruling with the 8th Court of Appeals. State and the districts’ attorneys are still submitting briefs before the court makes a final ruling in the case.

See here for some background. As noted, El Paso has been doing all right with the Delta outbreak. One has to assume that the mask mandate has helped with that. Hopefully the lifting of it now doesn’t set them back too far.

More on the San Antonio ISD vaccination mandate litigation

I’m a little confused at this point, but I’ll cope.

Judge Mary Lou Alvarez of the 45th District Court denied the state of Texas’ request for a temporary injunction Friday, allowing the San Antonio Independent School District to continue requiring its employees to be vaccinated against the coronavirus.

Former SAISD Superintendent Pedro Martinez, who has since left the district to take a job in Chicago, issued the vaccine mandate on Aug. 16, requiring all staff members to be vaccinated by Oct. 15. SAISD board President Christina Martinez said Thursday that about 90% of SAISD staff has been vaccinated.

Alvarez’s decision came after a hearing on the state’s request for temporary relief against the vaccine mandate was delayed. Another state district judge denied the school district’s challenge on Sept. 23 that the state and Gov. Greg Abbott did not have jurisdiction to sue. SAISD then appealed that ruling, pushing back the original hearing for the state’s lawsuit; the appeal was dropped earlier this week.

After Alvarez’s ruling, the state’s legal team said they planned to appeal. A trial for the lawsuit is set for Jan. 19, 2022.

[…]

Attorney Steve Chiscano, who represented SAISD, dismissed the state’s lawsuit as a political ploy.

“We are sitting in an injunction hearing that the AG is hoping to win so he can spin off another press release on how proud he is that he beat up on this district,” Chiscano said. “It is so obvious and so clear that this is happening that I believe at the end of the day, you’ll see that what the governor is doing is not supported by any law.”

See here and here for the background. I’ve decided that we had a motion by SAISD to dismiss the lawsuit, which was denied, and then the state asked for a temporary restraining order against SAISD, which was also denied. The source of my initial confusion was the change in judges between the two, but I think that may just be how Bexar County rolls. In any event, true to form and as the story notes, Paxton – who was not present for the hearing – did indeed tweet about it and how he’s fighting for the freedom of people who want to get sick and die and take others with them. Ultimately, this judge did not buy the state’s argument that the Abbott executive order was enough on its own to prevent SAISD from responding to the pandemic in this fashion. A higher court may intervene before the hearing for an injunction, but in the meantime I sure hope that SAISD is making progress in getting shots into arms. That is what really matters. The Current has more.

COVID continues to run amuck at the schools

This is our reality.

Students in Texas public schools are facing another year upturned by COVID-19 as the highly contagious delta variant spreads, mask mandates are inconsistent and children under 12 cannot yet be vaccinated against the virus.

Less than two months into this school year, the number of reported coronavirus cases among students has surpassed the total from the entire 2020-21 school year. Schools are prohibited from taking precautions such as requiring masks, though some are fighting the governor’s order banning mask mandates. Far more students are on campus, since most districts do not have a remote learning option.

[…]

State data on school cases is incomplete and likely an undercount. TEA suppresses some districts’ case counts to protect student privacy, and not all districts report student and staff cases to the state, despite agency guidance requiring otherwise. The agency also retroactively updates its data from previous weeks as more districts report cases.

Some large districts, such as Houston and Dallas, have not consistently reported cases to the state since TEA started tracking COVID-19 data on Aug. 2 for this school year. Many districts publish a COVID-19 dashboard that shows cases, and TEA recommends families check for the latest data there.

Entire districts, including Angleton and Lumberton, have closed temporarily without reporting cases to the state. These districts don’t necessarily report their closures, either, since they are not required to do so. TEA informally tracks closures based on media and district reports, said Frank Ward, an agency spokesperson.

I don’t quite understand the embedded table that this story has about school districts with the most reported COVID cases, as the numbers they report for HISD don’t match up with the ones on the HISD site. I guess they’re showing active cases and not cumulative ones, but it doesn’t sound like that from their description. In any event, the point is there’s a lot of COVID in the schools, and the schools have few options right now to mitigate it other than defying Greg Abbott’s mask mandate ban and hoping for the best in the courts. The forthcoming EUA for the Pfizer shot for kids will help eventually, though that will take time as even pro-vaxx parents may wait a bit before giving it to their kids.. And that is our reality.

SAISD vaccine mandate update

Still in place for now, but clearly on shaky ground.

Best mugshot ever

San Antonio Independent School District can continue requiring its staff to get vaccinated against COVID-19, despite a judge ruling against the district Thursday in a case filed by the Texas attorney general.

Judge Angelica Jimenez of the 408th District Court denied SAISD’s plea on Thursday that state Attorney General Ken Paxton lacks the legal authority to enforce Gov. Greg Abbott’s Aug. 25 executive order, which banned public entities, such as school districts, from mandating COVID-19 vaccines. Steve Chiscano, the attorney representing SAISD, immediately appealed the ruling.

Appealing Jimenez’s jurisdiction ruling delayed a hearing requested by the state to stop SAISD’s vaccine mandate with a temporary restraining order. The school district and attorney general’s office will make their arguments again before the 4th Court of Appeals. Case information is due at the court Oct. 4, according to online court records. The lawyers will file briefs, and justices will make a decision at an undetermined date.

[…]

In a statement, the district said Jimenez’s ruling does not enforce Abbott’s executive order prohibiting vaccine mandates and that SAISD would continue its vaccine protocols.

“We do not believe the Governor and Attorney General have the legal authority to continue this lawsuit, and we respectfully disagree with the judge’s ruling,” the district said in the statement. “We know that following the executive order and not requiring vaccination of our employees is potentially deadly, and we will do what is necessary to protect the children and staff of the district.”

See here for the previous update. I’ve always thought that the vaccine mandate was a heavier lift than the mask mandates, so I won’t be surprised if Paxton eventually wins this one. But as long as that mandate remains in place, SAISD can move closer to a goal of maximizing the number of its employees who have been vaccinated. No matter the odds, that’s worth fighting for.

Feds officially investigating Texas mask mandate ban

Good.

The U.S. Department of Education on Tuesday launched a civil rights investigation into Gov. Greg Abbott’s ban on mask mandates in schools, making Texas the sixth state to face a federal inquiry over mask rules.

The investigation will focus on whether Abbott’s order prevents students with disabilities who are at heightened risk for severe illness from COVID-19 from safely returning to in-person education, in violation of federal law, Suzanne B. Goldberg, the acting assistant secretary for civil rights wrote in a letter to Texas Commissioner of Education Mike Morath.

The investigation comes after the Texas Education Agency released guidance saying public school systems cannot require students or staff to wear masks to prevent the spread of COVID-19 in light of Abbott’s ban on mask mandates.

[…]

Goldberg wrote that the Office for Civil Rights will examine whether TEA “may be preventing school districts in the state from considering or meeting the individual educational needs of students with disabilities or otherwise enabling discrimination based on disability.”

The department previously opened similar investigations into mask policies in Iowa, South Carolina, Utah, Oklahoma and Tennessee. But the agency had not done so in Texas because of court orders preventing the state from enforcing Abbott’s order. The new TEA guidance changed that, however.

See here and here for the background. The TEA’s new directive made me scratch my head.

In newly released guidance, the Texas Education Agency says public school systems cannot require students or staff to wear masks to prevent the spread of COVID-19.

A statement released by the agency Friday says Gov. Greg Abbott’s May executive order banning mask mandates precludes districts from requiring face coverings.

“Per GA-38, school systems cannot require students or staff to wear a mask. GA-38 addresses government-mandated face coverings in response to the COVID-19 pandemic,” the statement reads. “Other authority to require protective equipment, including masks, in an employment setting is not necessarily affected by GA-38.”

The agency previously had said it would not enforce the governor’s ban until the issue was resolved in the courts.

Texas Attorney General Ken Paxton has sued several school districts for imposing mask requirements on students and teachers, and some districts have sued the state over the governor’s order. The lawsuits have produced mixed results with some courts upholding districts’ mask mandates and some siding with the attorney general.

TEA officials on Tuesday did not immediately respond to requests for comment on the new guidelines and questions about how the agency would enforce the ban on mask mandates. The agency has not yet clarified what prompted the new guidelines, given that the legal battles regarding the order are ongoing.

Hard to know exactly what motivated this, but “pressure from Greg Abbott and Dan Patrick and Ken Paxton” would be high on my list of suspects. If I were to advise school districts that currently have mask mandates, as HISD does, or are thinking about imposing one, I would say go right ahead, and keep the mandates you have. This is a toothless threat, and the courts have not yet weighed in on the issue in a meaningful way. We know that having the mask mandates promotes safety, and if that isn’t the highest priority I don’t know what is. Do not waver.

Anyway. The Trib has an explainer about the state of mask mandates and lawsuits around them, but it doesn’t indicate when the legal cases may be having hearings, which admittedly would be a big task to track. The federal lawsuit will have a hearing on October 6, and we may get some clarity out of that. In the meantime, keep the mask mandates. We need them, and (a couple of district court judges aside) no one is stopping school districts from having them. The Trib has more.

El Paso is doing all right with Delta

Good for them, let’s hope it lasts.

While some other metro areas like Austin reported record high numbers of COVID-19 patients in their area hospitals just last month, and while statewide hospitalizations came close to eclipsing the January peak of 14,218, El Paso-area hospitals, which serve nearly a million West Texas residents, haven’t come close to their previous highs.

El Paso’s peak for COVID-19 hospitalizations was just over 1,100 in mid-November, said Wanda Helgesen, director of BorderRAC, the state’s regional advisory council for local hospitals.

On Thursday, the number of people hospitalized for COVID-19 in El Paso was 127.

In fact, the city’s daily hospitalization numbers haven’t broken 200 since March, according to the Texas Department of State Health Services. Hospitals are seeing an increase in patients, have occasionally seen their ICUs fill up and are having the same staffing problems as the rest of the state, she said, but have so far been able to handle the uptick.

Most of the pressure is related to non-COVID patients, many of whom had been waiting to get treatment for other problems, she said.

“We do have a surge of patients but not to the extent that other parts of Texas are having,” she said.

Helgesen and others say much of the credit can be attributed to the area’s high vaccination rate, widespread compliance with masking and social distancing, and a strong partnership among local community and health care leaders.

“It is amazing,” Helgesen said. “It is absolutely a credit to our community. I really think it was an all-out effort.”

The share of COVID-19 tests in El Paso that come back positive is hovering around 6%, while the statewide positivity rate is three times that at 18%.

And while COVID-19 patients, most of whom are unvaccinated, took up more than 30% of hospital capacity in some areas and more than 20% statewide last week, in El Paso they accounted for only 7% of patients in local hospitals.

For a city with one of the state’s highest per-capita COVID-19 death counts, the numbers present a rare glimmer of good news for the traumatized residents of this West Texas border city.

“Compared to the rest of Texas, we’re in heaven,” said Gabriel Ibarra-Mejia, assistant professor of public health at the University of Texas-El Paso. “That doesn’t mean we are free from COVID, but we’re doing much, much better than most of the rest of the state. The numbers don’t lie.”

Civic and health leaders say they aren’t ignoring one important fact: El Paso’s surges have been weeks behind the rest of the state throughout the pandemic, so it’s possible that the region’s own delta-fueled spike could still be ahead.

“We aren’t letting our guard down,” Helgesen said.

El Paso Mayor Oscar Leeser, who lost his mother and brother to COVID during the winter surge, said the reason the city and county have enacted recent mask mandates, in defiance of Gov. Greg Abbott’s ban on them and in spite of lower numbers, is because the potential for another surge is still real.

“We do worry and we want to make sure that we don’t have any spikes,” he said. “You always want to be proactive and you always want to be prepared.”

The story goes on to recount the huge spike in COVID cases that El Paso experienced last November, which put it in the national news. If you look at the included chart of COVID cases, which tracks El Paso and the state as a whole, the two were mostly in sync except for that giant surge in November, which came between the two big statewide surges, and now, when the statewide rate began to take off in May but El Paso’s stayed more or less where it had been. I’m sure the mask mandate and above-norm vaccination rates have helped with that, but it may also be that enough unvaccinated El Pasoans have had COVID that the overall rate of immunity is high enough to be something like herd immunity. Or maybe they’re just lucky right now, and the curve will begin to turn upward for them eventually. I very much hope that’s not the case, but I think we all know that this pandemic has been persistent and somewhat random about who gets it the worst at a given time. In the meantime, though, keep on keeping on, El Paso.

Galveston ISD mask mandate remains, Round Rock gets halted

Good.

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

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

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

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

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

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

[…]

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

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

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

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

Paxton sues more school districts

Another rampage by the morally bankrupt felon in the AG’s office.

Best mugshot ever

Texas Attorney General Ken Paxton has unleashed another wave of lawsuits against school districts over their masking policies — but one of them says it doesn’t even require face coverings.

Midway Independent School District is a Waco-area district that sits on a list compiled by the attorney general’s office of school districts and counties that have flouted Gov. Greg Abbott’s ban and put in place their own mask-wearing orders.

The hitch? Midway ISD doesn’t mandate that students, teachers, school staff or visitors don masks while on school premises, a district spokesperson said Wednesday. Midway officials have tried to convince the attorney general’s office the district doesn’t have a mandate — but to no avail.

“We have not received information of why or how we are considered out of compliance or considered for a lawsuit,” district spokesperson Traci Marlin said in an email.

The Midway school district is among nine that Paxton announced on Tuesday that he is suing for allegedly defying Abbott’s executive order banning public schools and local governments from enacting local mask mandates.

Under Midway’s virus protocol, campuses can issue 10-day “mask directives” that encourage mask-wearing on the premises if virus transmission reaches a certain level — but doesn’t require it. The attorney general’s office pointed to that protocol as the basis of its lawsuit against the district but declined to answer other questions from The Texas Tribune.

Those directives are not the same as mandates, Marlin said — and in one case, such a directive successfully cut down the number of active cases on a campus.

“Directives are not enforced,” she said. “There are no punishments or repercussions.”

McGregor Independent School District, another district near Waco, did require mask-wearing if virus transmission became too severe but, at Paxton’s request, did not enforce the mandate, Superintendent James Lenamon said in a statement.

Nonetheless, Paxton sued the district.

“The district is disappointed that the AG has decided to sue anyway,” Lenamon said.

[…]

In addition to McGregor and Midway, Paxton announced lawsuits against seven other districts Tuesday: Diboll, Honey Grove, La Vega, Longview, Lufkin, Paris and Waco school districts.

See here for the previous story. The fact that neither Ken Paxton nor Greg Abbott has the power to enforce the mask mandate ban isn’t stopping him. Given that, we should not be surprised that he isn’t particularly concerned about the details in these districts. This is all about throwing his weight around. And by the way, for anyone who might have thought that P Bush or Eva Guzman would present a more moderate, less “burn the witch!” alternative to Paxton in the Republican primary, I’m not seeing any statements from them in which they question the wisdom of this effort. I’m just saying. (There is one candidate who has spoken about it.)

Ironically, the one win Paxton has chalked up so far has come against the one school district that appeared to have found a silver bullet.

Paris schools announced Tuesday they are no longer requiring masks on campus. This comes a month after the Texas Attorney General Ken Paxton sent the district a cease and desist letter telling them to stop requiring masks. Paxton listed Paris ISD, the school board and the superintendent in a lawsuit over the same mandate.

According to a temporary restraining order signed by a Lamar County district judge Monday, Paris Independent School District is no longer able to enforce their mask mandate and, they backed down. But despite the order Paris ISD says they will continue to strongly encourage everyone on campus to wear one.

“It was a rather cowardly act on the Attorney Generals office’s part,” said General Counsel for the district, Dennis Eichelbaum.

[…]

In August, the district included masks as a part of their dress code citing Chapter 11 of Texas Education Code, which states the school board has the right to set the dress code.

“There’s absolutely no reason why if we want to have a dress code, there’s no justification for the government office without having suspended the laws that give us the authority to run the district, to allow us to do our job,” said Eichelbaum.

According to court documents, a district judge signed a temporary restraining order against the district on Monday making it against the law for them to require masks on campus.

“We are still encouraging everyone to wear masks even if it’s not mandated, Paris ISD has seen a significant drop compared to other communities in the area with regard to children being sent home for COVID-19. we believe there’s a connection with the mask mandate., and we encourage everyone to continue to wear a mask to keep everyone safe,” Eichelbaum said. “We’re now set for a hearing next week in district court, and at that time, we will be defending our board policy which permits mask mandates.”

Eichelbaum says they will be defending the district’s right to enforce safety measures during the COVID-19 pandemic.

A hearing is set for Tuesday, September 21. This will determine whether the temporary restraining order will be overturned.

See here and here for the background. You got a raw deal, Paris. I’m rooting for you at the hearing. KVUE has more.

UPDATE: Wait, this detail wasn’t in that last story for some reason.

Dennis Eichelbaum, lawyer for Paris ISD, said Paxton’s office — despite the fact Paxton had sent multiple letters threatening lawsuits beforehand — didn’t notify the district of the lawsuit until after the hearing was over, and the restraining order had been granted. Paris ISD didn’t get to make its case against the restraining order as a result, Eichelbaum said, describing it as “a cowardly move” from Paxton.

“First, it’s against the rules of civil procedure. So he doesn’t care about the law when it applies to him,” Eichelbaum said. “He’s very brave to go to court when you’re not there to defend yourselves.”

“A lot of times attorneys will get sanctioned for it if they do something like this,” he added, saying he will ask the district’s trustees if they want to pursue the matter with the judge.

Emphasis mine, and wow. What a sniveling coward Ken Paxton is. Please, please, pursue this matter with the judge.

Paxton sues again over SAISD’s vaccine mandate

Yes, vaccine mandate. For teachers and staff.

Best mugshot ever

For the second time in a month, Texas Attorney General Ken Paxton sued San Antonio Independent School District and Superintendent Pedro Martinez for requiring all staff to be vaccinated against COVID-19.

Martinez issued a staff vaccine mandate and mask mandate Aug. 16 for everyone inside school buildings. Three days later, Paxton sued Martinez and SAISD over both mandates, stating in the lawsuit that the superintendent and the district were “deliberately violating state law,” as a July executive order from Gov. Greg Abbott prohibits any entity that receives public funds from mandating COVID-19 vaccines that had received only emergency approval from the federal government.

But the federal Food and Drug Administration granted full approval for the Pfizer COVID-19 vaccine on Aug. 23, and the lawsuit was dropped. Two days later, Abbott issued a new executive order, banning governmental entities from requiring any COVID-19 vaccine, regardless of FDA approval status.

Paxton filed the second lawsuit against SAISD in Bexar County on Sept. 9, seeking a temporary restraining order barring the school district from mandating vaccines. In the petition, Paxton claims SAISD and Martinez are again violating state law by “flouting” the August executive order.

“The decision to openly violate state law and devote district resources to defending Superintendent Martinez’s unlawful actions is irresponsible,” Paxton said in a statement. “But if school districts decide to use their limited funding to try to get away with breaking the law, my office will oppose them and uphold the rule of law in Texas.”

See here and here for some background. My reaction when Paxton filed the first lawsuit was that he was likely to prevail, and despite the FDA approval and Biden mandate (which has been announced but not yet fully implemented), I don’t see any reason why that would change. I will of course be happy to be wrong, and if it is the case that some people have gotten vaccinated as a result of the SAISD mandate then it’s a win no matter what happens in court. The main thing to remember here is that Ken Paxton, like Greg Abbott, is objectively pro-COVID, and we need to make them pay at the ballot box for it.

Our COVID failures and our economy

Remember when the goal was to get the economy going again?

The recent surge in COVID-19 cases is not only hitting the state in terms of lives lost, but it’s taking its toll on the Texas economy. That’s according to a new report from the Perryman Group, an economic research and analysis firm in Waco.

They estimate the state’s failure to contain the disease has led to nearly 72,000 job losses. The analysis also found on average, the state loses roughly $187,000 for every employee unable to return to work because of the pandemic. That amounts to total potential losses of about $13 billion per year, the firm found.

But they argue many of these potential losses are preventable.

“What we need to do right now is do everything we can to make it safer for people to return to work. That includes masks where appropriate. That includes safety in schools so people that have issues with their children in childcare and things like that that prevent people from returning to work,” said Ray Perryman, president and CEO of the Perryman Group. “These are what we call preventable [economic] losses.”

Perryman said certain industries are being hit harder than others.

“In terms of dollar impacts, obviously a worker in a tech industry per worker has a much bigger impact than say a worker in a restaurant. But from an industry perspective, the ones being hit the hardest are the ones you’ve been hearing about since the beginning of the pandemic that deal in interpersonal relationships – retail, particularly restaurants, salons, airlines,” he said.

He says getting more people vaccinated is also key to avoid future economic losses.

The full report is here if you want to read it, and there’s video of an interview with Perryman about this at the first link. Honestly, in the context of Texas’ economy, $13 billion is pretty small, as is 72,000 jobs. Not nothing, especially if you’re in one of the more affected sectors, but not so much that you’d notice it on a graph. The point that all of this was preventable, with more aggressive vaccination promotion and distribution, and a continued reliance on masks while allowing local governments to have the discretion they need to respond as they see fit, is still true. There’s no good reason why we have to be going through what we are going through now. It was all the result of Greg Abbott’s actions.

Paxton sues several school districts over mask mandates

Whatever, dude.

Best mugshot ever

Texas Attorney General Ken Paxton announced Friday that he filed a lawsuit against Richardson ISD, following through on his pledge to sue school districts who mandate masks.

The district defied Gov. Greg Abbott’s executive order prohibiting local entities from requiring masks. The RISD trustees voted last week to affirm Superintendent Jeannie Stone’s decision to require face coverings, after they were forced to close an elementary school because of a spike in COVID-19 cases and a sixth grader was admitted into the intensive care unit.

Paxton noted in a release that the office anticipates filing additional lawsuits against the districts flouting the governor’s order. This could include Dallas ISD — the first to openly defy Abbott.

“Not only are superintendents across Texas openly violating state law, but they are using district resources—that ought to be used for teacher merit raises or other educational benefits—to defend their unlawful political maneuvering,” Paxton said in a statement.

[…]

Richardson is among the first Texas districts to be sued by Paxton. Friday he also filed suit against the Galveston, Elgin, Spring and Sherman school districts, according to his office.

He has railed against the dozens of school districts and counties who stood firm on mask mandates, repeatedly posting on social media that he would sue them all. Paxton’s office maintains an ever-evolving list of local entities that are mandating masks.

Meanwhile, Abbott’s order is tied up in both state and federal courts as districts and advocates push for mask mandates to be local decisions.

Dallas County Judge Clay Jenkins is locked in a legal fight with the state over his decision to impose a local mask mandate for businesses and schools.

Disability Rights Texas recently escalated the legal battle, filing a federal lawsuit against Abbott, alleging his order unfairly harms children with disabilities.

Richardson trustees also recently voted to join an existing multi-district lawsuit challenging Abbott’s ban, which argues the governor’s executive order exceeds his authority and infringes on local control.

Paxton’s move could have federal implications, as well. The U.S. Department of Education’s Office for Civil Rights recently opened investigations into five states that prohibit mask mandates, saying such bans may violate the federal law meant to protect students with disabilities.

Department officials indicated they had not opened an investigation into Texas because its ban isn’t currently being enforced because of court orders.

Again, neither Ken Paxton nor Greg Abbott has the power to enforce mask mandate bans. Even if Paxton gets a judge to rule in his favor – the score so far is tilted pretty heavily against him – local DAs can and should thumb their noses at him. It’s not clear to me where these lawsuits have been filed – in this press release he said there were three of them, but didn’t get more specific than that. There may be more coming, so eventually we’ll sort it all out. In the meantime, Paxton can go pound sand. The Chron, Reform Austin, and KXAN have more.

UPDATE: Here’s the Trib story, which notes that the lawsuit against Galveston ISD was brought in Galveston County, as one might expect. That’s probably true of the others, each filed in their home county, but it would still be nice to have that confirmed.

Mayor Turner orders unvaxxed city employees to get tested twice a week

So maybe get vaccinated, and avoid all the hassle.

Mayor Sylvester Turner

Unvaccinated city workers must get tested for COVID-19 twice a month and report their results to the human resources department, Mayor Sylvester Turner announced Wednesday.

Turner signed an executive order implementing the policy,which takes effect Oct 8. It will allow some exemptions for religious and medical reasons.

The plans come as the city regularly has had more than 300 active cases of the virus among its workforce, Turner said. The latest numbers showed 342 workers with the virus, including 129 police, 161 municipal and 52 fire department employees.

Those cases hamper city operations, the mayor said.

“When you have 129 police officers with COVID, they’re not able to perform their jobs. Same thing with municipal workers, and, for example, permitting, that slows things down,” Turner said. “Simply don’t want them to get sick and don’t want anybody, anybody to die.”

[…]

The policy will apply to all police, fire and municipal staff who have not been fully vaccinated. It will not apply to elected officials or appointed members to the city’s boards and commissions.

The fire, police and municipal workers unions did not respond to requests for comment on Turner’s plan.

Turner said staff will face disciplinary action if they do not comply.

“It could even cost you your job,” the mayor said.

The mayor in recent weeks had teased a policy to encourage vaccinations, saying many city workers have not gotten their shots.

Mayor Turner implemented a mask mandate for city employees in early August. As far as I know, that executive order has not been involved in any of the lawsuits over mandates and Greg Abbott’s ban on them. This is a step up from that – it’s not a vaccine mandate per se, but it’s pretty close and I doubt Greg Abbott or Ken Paxton will split hairs. (They already have a reason to be whipped into a frenzy about this.) Whether or not cities can issue vaccine mandates is on the agenda for the next special session. What I’m saying is, I don’t know how long I expect this policy to last. And that’s before we hear of the inevitable resistance from the police and firefighter unions – police unions around the country have been staunch resisters of vaccine mandates, and we know how well the Mayor and the HPFFA get along. I support what the Mayor is doing here – if anything, I’d want to see the testing be more frequent – I just doubt he’ll be able to fully implement it. I’ll be happy to be proven wrong.

We really need a mask mandate at every school district

Or we can just accept a lot more hospitalized kids. Easy choice if you ask me.

The number of Texas children hospitalized with COVID-19 hit an all-time high over the weekend, with 345 on Saturday and 307 on Sunday, the highest two-day stretch recorded during the pandemic, according to data from the Texas Department of State Health Services.

The data follows a national trend of rising pediatric COVID hospitalization rates. A study from the Centers for Disease Control and Prevention released Friday shows the highest rate of increase among teenagers and children 0-4 years old. The study also found unvaccinated adolescents were 10 times more likely to need hospitalization compared to their vaccinated peers.

Children under 12 are ineligible for any of the available COVID-19 vaccines.

School reopenings and “pandemic fatigue” are two primary reasons for the statewide increase, said Dr. Katelyn Jetelina, an epidemiologist at UTHealth School of Public Health in Dallas and author of the popular blog “Your Local Epidemiologist.”

“The more that kids interact with each other, the more this is going to transmit,” she said, adding, “We really need to step up our mask game. Parents really need to invest in good masks to wear for their school.”

She urged parents to buy N95 masks for their children and to “lead by example” with their own mask-wearing habits.

Multiple studies have shown masks help reduce COVID transmission indoors. The CDC study also recommends universal masking in schools, where cases are soaring in Texas. The state health department on Aug. 29 recorded 51,904 COVID cases among Texas students since the 2021-22 school year began.

I mean, we’re a year and a half into this pandemic. We do know all this stuff already. I get that some people are tired of doing pandemic things, but 1) if said person is not vaccinated then they can just STFU right now, as this is all their fault, and 2) as the kids say, we may be done with the pandemic but it’s not done with us.

Thankfully, HISD is doing it right.

While outbreaks have forced some districts to close schools already, Houston ISD has fared comparatively well two weeks into its school year.

By midday Friday, the state’s largest district of nearly 200,000 students had confirmed 1,085 active cases among students and staffers, according to its dashboard.

The most important mitigation strategy the district could implement is one it already has in place — ensuring people wear masks, Superintendent Millard House II said Thursday.

“As we look at the data in our schools, yes we have COVID cases,” House said during an agenda review meeting. “But if we look at the percentage of spread in our schools in comparison to the number of kids that we have, it looks — it does not look bad in comparison to some of the other schools that don’t have mandates in place.”

Health professionals agree the mask mandate may be helping HISD reduce the risk transmission inside its classrooms, even as kids younger than 12 remain ineligible to be inoculated and the delta variant continues to spread mostly unchecked in the Houston area.

“I attribute it to that,” said Dr. Quianta Moore, Huffington Fellow in child health policy at Rice University’s Baker Institute for Public Policy. “There are some schools that the parents and the community are wearing masks and they are also having low transmission.”

As I said before, I don’t want to get overconfident, but again, we know that masking helps. Given the risks, the current legal status, and the complete lack of consequences for defiance, I can’t think of any good reason for a school district to not have a mask mandate in place. We’re either trying or we’ve given up.

Special session 3.0

Yeah, we knew it was coming. Still too soon.

Gov. Greg Abbott on Tuesday announced a third special legislative session that will begin on Sept. 20 and tackle redistrictingrestrictions on transgender student athletes and the ongoing COVID-19 pandemic.

“The Texas Legislature now has the opportunity to redraw legislative and congressional districts in accordance with the new census numbers,” Abbott said in a statement. “In addition to redistricting, there are still issues remaining that are critical to building a stronger and brighter future for all Texans.”

Lawmakers, who will meet in Austin for the fourth time this year, will also be tasked with allocating $16 billion in federal COVID-19 relief funds and with deciding whether state or local governments can mandate COVID-19 vaccines. Abbott also included on his five-item agenda a bill that would ban the tethering of dogs outside with heavy chains, which he had vetoed earlier this year. Abbott asked lawmakers to address concerns he had about the specificity of the bill and “over-criminalization.”

The Legislature just wrapped its second overtime round on Thursday, delivering on major conservative priorities like an elections law that restricts how and when voters cast ballots, a ban on how teachers can talk about race and history in classroomsbillions of dollars in additional border security funding and further restricting abortion access.

But lawmakers failed to deliver on two issues pushed by the GOP base: requiring transgender student athletes to play on teams based on the gender assigned to them at or near birth, and banning COVID-19 mandates.

Abbott had asked lawmakers to ban mask mandates in schools during the second special session but lawmakers could not get that proposal over the hump. Now, Abbott is asking the Legislature to decide whether state or local governments can mandate COVID-19 vaccines.

The bills about transgender student athletes and COVID-19 mandates will likely turn up the heat on an already contentious 30-day session. Lawmakers will take up their decennial redrawing of the state’s political maps, meaning some legislators will be fighting for their political lives. (Redistricting usually takes place during the first legislative session after the census, but it was delayed this year because of setbacks spurred by the coronavirus and the Trump administration’s handling of the census data.)

Like I said, we knew it was coming. I don’t know if the lawsuit that was filed by two State Senators to stop legislative redistricting will be successful, but I have to assume there will be a ruling of some kind before this session gets underway. The continued assault on trans kids is sadly unsurprising; the lack of a fraudit item is at least temporarily hopeful. I mean look, none of us want another special session. I’m sure that wearing us all down is part of the plan. But here we are anyway. Oh, and Abbott et al will try to do a bit of cleanup on the so-called “heartbeat bill” since none of them know how to talk about the lack of a rape or incest exemption. So we have that to look forward to as well.

Just a reminder, no one is enforcing Abbott’s mask mandate ban

In case you had forgotten.

While Republican Gov. Greg Abbott is speaking out against mask mandates in schools and suing to stop some Texas school districts from enacting them, in reality his order banning such mandates has gone largely unenforced — so much so that the federal government doesn’t consider it active.

Abbott threatened $1,000 fines for officials who try to impose mask mandates, although no such fines have been handed down. And if he wanted to, Abbott could send state troopers or deputize the Texas National Guard to enforce his order, as he has done on the border, but he hasn’t. Texas Attorney General Ken Paxton, meanwhile, has a published list of 71 non complying cities, counties and school districts; is fighting in court with at least six of them and sent letters threatening more legal action to others.

But in the court filings from the lawsuits, Paxton has acknowledged that neither he nor Abbott will directly enforce the ban on mask mandates, instead leaving it to local district attorneys, some of whom are already on-record saying that they don’t intend to prosecute.

Abbott’s own Texas Education Agency on Aug. 19 said that the ban on mask mandates would not be enforced until the courts have resolved legal challenges to his authority to do it. And the federal Department of Education chose Monday not to open an investigation into the matter in Texas, even as it launched probes of five other states with active bans.

[…]

The five largest counties in the state are Harris, Dallas, Tarrant, Bexar and Travis. The district attorneys for Harris and Bexar counties have already announced they don’t intend to prosecute school districts over mask rules, and a prosecutor with Travis County said the office would remain focused on violent crime, although they would evaluate the situation on a case-by-case basis.

Tarrant County did not respond to a request for comment, and a spokeswoman for Dallas County said: “This issue is working its way through the civil courts. At this point in time — until that’s concluded and depending on how that’s concluded — there’s no reason to consider a position on that.”

On Monday at a House Public Education Committee hearing, Rep. Steve Allison, a San Antonio-area Republican, acknowledged there’s “an appearance of dysfunction” in government right now over the mask orders and Abbott’s ban.

See here and here for the background. I’m not sure why the Travis and Dallas DAs are being so equivocal, but it doesn’t really matter. There’s no way they’ll prosecute anyone over this, not if they want to avoid having their asses handed to them in the next primary election. We all know this is about Greg Abbott trying to look macho for the Republican primary voters. There’s no need to help him with that in any way.

A rough start to the school year

For some districts more than others.

Angleton and Livingston ISDs announced this week they temporarily were shutting down their schools, the first Houston-area districts to halt all in-person learning amid rising numbers of COVID-19 cases among students and staff, but possibly not the last.

With reported cases increasing rapidly since schools in the Houston region reopened last month, some districts are discussing contingency plans for closing campuses and, in some cases, shifting to online learning.

Already a handful of districts temporarily have shuttered individual classrooms or entire schools, prompted by the number of student infections, the number of kids having to quarantine or staff shortages caused by illness or quarantines.

With little guidance from the Texas Education Agency on metrics and thresholds that should trigger closures, school districts are making those calls on their own or relying on local health authorities. Among the factors being considered are rates of infection, teacher staffing — including the availability of substitutes — and student absences.

According to TEA, many districts have built time into their calendars in “anticipation that a temporary shutdown due to COVID” may be necessary.

“The agency has been coordinating with (districts) experiencing the need to close to ensure they have the information necessary to plan, adjust, and prepare to provide the required minimum of 75,600 operational minutes,” the agency said in an emailed statement.

[…]

Elsewhere in the state, Connally ISD in central Texas closed its five campuses near Waco for the week after two teachers died of COVID, as have a handful of east Texas districts and others in rural areas of the state.

Area districts that are mandating the use of face masks by students and staff, including Houston, Spring and Texas City ISDs, said they are not in talks about shutting down schools and are focusing on keeping in-person learning safe.

“We do not anticipate school closures,” reads Houston ISD’s COVID protocols. “However, should conditions change and an HISD school or building need to close, the determination will be made on a case-by-case basis by the superintendent in consultation with HISD Health and Medical Services and the Houston Health Department.”

Well, HISD still has a mask mandate, and I figure that has to be helping. I don’t want to get obnoxious about it since the Delta variant is terrible and pride goeth before a fall, but I’ll put better odds on HISD than on a district that isn’t taking the minimal steps to protect its students and teachers and staffers. According to the Trib, “At least 45 small school districts across Texas have been forced to temporarily stop offering in-person classes as a result of COVID-19 cases in the first few weeks of the new school year”. I’m willing to bet none of them had a mask mandate; the story didn’t specify but it did say at the end that at least one of these small districts is thinking about it in defiance of Abbott. The total number of student COVID cases that have been reported is up 90% over the previous week, which needless to say is a trend that needs to stop quickly or else. I don’t know how long we can go on like this, but I do know that whatever happens it’s on Greg Abbott. Keep all of these folks in your thoughts.

Feds take first steps in the mask mandate fight

Coming attractions.

The U.S. Department of Education is opening civil rights investigations to determine whether five states that have banned schools from requiring masks are discriminating against students with disabilities, the agency said on Monday.

The department is targeting Iowa, Oklahoma, South Carolina, Tennessee and Utah, all Republican-led states, in its investigations. It said it was concerned that their bans on mandatory masking could leave students with disabilities and underlying health conditions more vulnerable to COVID-19, limiting their access to in-person learning opportunities.

“It’s simply unacceptable that state leaders are putting politics over the health and education of the students they took an oath to serve,” U.S. Secretary of Education Miguel Cardona said in a statement.

“The Department will fight to protect every student’s right to access in-person learning safely and the rights of local educators to put in place policies that allow all students to return to the classroom full-time in-person safely this fall.”

[…]

Florida, Texas, Arkansas and Arizona are four other Republican-led states that have banned mandatory masking orders in schools. The Education Department left those states out of its inquiry because court orders or other actions have paused their enforcement, it said in a news release.

The department says it is monitoring those states and would take action if local mask-wearing policies are later barred from going into effect.

See here for the background, and here for the press release. It’s too early to say how this might go, and that’s before we get a resolution in the reams of mask mandate-related lawsuits that are still working their way through our system. Suffice it to say that the good guys have a lot of fight left in them.

More injunctions against the mask mandate bans

Keep ’em coming.

Concluding that Gov. Greg Abbott exceeded his authority by banning mask mandates in Texas, an Austin judge ruled Friday that school districts in Travis County can enforce face coverings as a COVID-19 precaution.

State District Judge Catherine Mauzy’s order also applied to 19 school districts that represent about 1 million students — including Austin, Dallas, El Paso, Fort Worth and Houston — as well as Austin Community College, which also sued Abbott.

However, Texas Attorney General Ken Paxton quickly appealed, automatically blocking enforcement of Mauzy’s temporary injunction — though the Austin-based 3rd Court of Appeals can be asked to reinstate the judge’s order while Paxton’s challenge proceeds.

In her ruling, Mauzy concluded Abbott’s ban on mandatory masks — contained in a July 29 executive order — was unlawful and exceeded his authority in violation of the Texas Constitution.

Mauzy found that the school officials and parents who challenged Abbott’s order made “a sufficient showing” to establish that Abbott was not authorized to declare “by executive fiat” that school districts are prohibited from requiring masks to be worn.

Without court intervention, Mauzy added, Abbott’s ban leaves school officials unable to mandate masks to control the spread of COVID-19, “which threatens to overwhelm public schools and could result in more extreme measures such as the school closures that have already begun in several Texas school districts.”

In a separate ruling, Mauzy also granted an injunction sought by Harris County to allow a mask mandate to continue for Houston-area school districts, said Christian Menefee, county attorney.

“Gov. Abbott is misusing the Texas Disaster Act to make this pandemic worse,” Menefee said, calling the ruling an important step in reining in the governor.

But in a third challenge, the judge declined to issue a statewide injunction, requested by the Southern Center for Child Advocacy, that would have allowed mask mandates in all Texas school districts. Mauzy’s one-page order gave no reason for the denial.

It’s hard to keep track of all of these, but see here for the original ruling in the Harris County case, and here for the original ruling in the SCCA case; the filing of their lawsuit was noted here. I have so many of these posts, some of which combine stories from multiple lawsuits, so I can’t find (and may not have) a post about the original Austin lawsuit, but the famous SCOTx demurral of the emergency request by Paxton and Abbott to block a TRO was related to the Austin/Travis County lawsuit. I note that the Harris County case and the SCCA case were originally in Judge Jan Soifer’s courtroom, so I am assuming that a bunch of similar lawsuits were combined into one and that’s how they all wound up before Judge Mauzy.

The injunction may be on hold because of the appeal (there’s some fancy legal term for this that I have encountered before but forgotten by now), but the plaintiffs can and surely will ask for it to be reinstated by the Third Court of Appeals. That will force another reckoning with the Supreme Court, thanks to the recent order in the Bexar County case. In a sense all of this is just sound and fury since Abbott and Paxton can’t enforce the mask mandate bans anyway, but the ritual must be observed. I feel like I should get a CLE credit for all of this blogging. HISD Superintendent Millard House’s statement about the ruling is here, and KXAN and the Trib have more.

Abbott admits he can’t enforce his mask mandate ban

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Bexar mask mandate put on hold again

SCOTx has entered the chat, again.

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

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

[…]

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

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

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

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

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

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

Dallas County gets its injunction

Another big win.

Clay Jenkins

A district court judge has sided with Dallas County Judge Clay Jenkins in his dispute with Gov. Greg Abbott over the county’s mask mandate, allowing the mandate to stay in place.

Judge Tonya Parker issued a temporary injunction Wednesday on Abbott’s order that public entities such as cities, counties and schools can’t issue mask requirements or mandates. The injunction allows Jenkins’ mask order — and the mask requirements of local school districts — to continue, for now.

Parker in her ruling said that Jenkins has shown that Dallas County residents “will suffer probable imminent and irreparable injury through County Judge Jenkins being precluded from exercising his authority” to require masks in public.

The judge noted that the highly transmissible delta variant threatens to overwhelm the healthcare system and has increased hospitalizations and death in Dallas County.

“Each of these bases for probable imminent and irreparable injury independently supports the issuance of the requested temporary injunction,” the ruling said.

The temporary injunction will return Jenkins to “the position he was in” before Abbott’s executive order that barred face mask requirements, the ruling said.

Parker set a hearing for Jan. 10 to review the temporary injunction, though attorneys for the state could file an appeal to Parker’s ruling sooner than that.

See here for the background. A copy of the ruling is here, and you can see Judge Jenkins doing a media call about this here. This will be appealed, of course – one presumes that Paxton and Abbott have learned their lesson and will go through the appellate courts first – and we’ll see how long that takes. It may be that at the least SCOTx is less inclined to grant emergency relief. We’ll know when it gets to them. For now, a win for the good guys.

On a related note, Harris County Attorney Christian Menefee sent out an interesting press release that notes some differences between what Ken Paxton says in public about mask mandate bans and what he’s been saying in court about them.

In GA-38, the Governor banned school districts and local officials from mandating masks, and stated local officials who issue such safety measures would be subject to a “fine up to $1,000.” In response to recent mask mandates imposed by local officials, Attorney General Ken Paxton has stated publicly—and repeatedly—that his office will enforce Governor Abbott’s mask mandate ban. He and Governor Abbott joined together in stating that “any school district, public university, or local government official that decides to defy [the Governor’s mask mandate ban] will be taken to court.”[1] His office has compiled a list of “government entities unlawfully imposing mask mandates,” designed to intimidate those entities into compliance.[2] He has sent letters to many on that list, threatening them with enforcement.[3] He has tweeted several times he intends to sue these entities, most recently saying “I will defend TX Law & sue every entity that violates it. We will win!”[4]

Despite these public statements, the Attorney General admitted to the courts hearing the lawsuits brought by local officials and school districts that his office does not and cannot enforce GA-38, nor can he seek the $1,000 fine provided in the order. His office has stated plainly that “[n]either Governor Abbott nor Attorney General Paxton will be enforcing GA-38.”[5] Instead, the Attorney General acknowledges that only local district attorneys can enforce GA-38—he has claimed that entities like Harris County, other counties/cities, and certain independent school districts cannot sue the Governor and the Attorney General because they have “alleged no credible threat of prosecution by local district attorneys, who would be the ones enforcing GA-38.”[6]

Menefee added: “I presume the Attorney General is telling the truth in his court filings. He should be telling everyone else the same thing and letting local governments and school districts continue doing what they can to stop the spread of COVID-19, especially among our children.”

Go view the document to see the footnotes; the last two refer to the AG’s own filings in the cases involving Harris County and others. I mean, it’s not like anyone should have expected the truth from Ken Paxton, but it’s still bracing to see it laid out like that.

Greg Abbott remains COVID’s best friend

It’s hard to even know what to say.

Gov. Greg Abbott on Wednesday announced an executive order banning COVID-19 vaccine mandates regardless of a vaccine’s approval status with the U.S. Food and Drug Administration.

He also said he was adding the issue to the agenda for the current special session of the Texas Legislature.

The order comes two days after the FDA granted full approval to the Pfizer vaccine. That raised questions about the fate of a previous Abbott order that prohibited vaccine mandates, but only for those under emergency authorization.

Abbott’s latest order is simple, saying “no governmental entity can compel any individual to receive a COVID-19 vaccine.” The order preserves exceptions for places like nursing homes and state-supported living centers.

At the same time, Abbott asked lawmakers to consider legislation addressing whether state or local governments could issue vaccine mandates and, if so, which exemptions should apply.

“Vaccine requirements and exemptions have historically been determined by the legislature, and their involvement is particularly important to avoid a patchwork of vaccine mandates across Texas,” Abbott said in a statement.

[…]

There specifically appeared to be the fresh potential for cities, counties and school districts to require their employees to get vaccinated against COVID-19. San Antonio Independent School District had already announced mandatory employee vaccinations, prompting a lawsuit from Attorney General Ken Paxton.

District officials said Wednesday they will move forward with the mandate — despite Abbott’s latest order.

“We strongly believe that the safest path forward as a school district is for all staff to become vaccinated against COVID-19,” the district said in a statement.

See here for some background, and here for a copy of the order. As the story notes, this would prevent government entities from ordering their employees from getting COVID shots, though as you can see that’s already being challenged. Private employers are not affected by this, so if you work for one of the increasing number of them that are imposing COVID vax mandates, you’re out of luck. A bill passed during the regular session forbids businesses from requiring proof of vaccination from their customers, though that doesn’t take effect until September 1 so Harry Styles can still do what he wants.

I don’t think this is anywhere near the end of it. The same arguments being made about mask mandate bans – successfully, so far – by multiple counties and school districts is that the Disaster Act of 1975 doesn’t actually give Abbott this power. That would be equally true for vaccine mandate bans, I would think. That doesn’t mean the courts, by which I mostly mean the Supreme Court, will eventually accept that argument, just that these same entities will give it a try. The federal government will have a say as well, and let’s not forget the federal lawsuit, too. We’re also going to have an election next year, and we have the option of electing a Governor who wants to fight against the COVID virus instead of fighting for it. There’s a lot more of this story to be written. The Current and the Chron have more.

Back to SCOTx for the mask mandate ban

Brace yourselves.

Following an unfavorable outcome at an appellate court, Gov. Greg Abbott asked the Texas Supreme Court to block the mask mandate in San Antonio and Bexar County.

A Bexar County district judge issued a temporary order on Aug. 16 allowing the city and county to require masks in city and county buildings and public schools. That order keeps the mask mandates in place until December, when a trial is set for the case. Attorney General Ken Paxton, on behalf of the state, appealed that order immediately to the 4th Court of Appeals, but a panel of judges upheld the local mask mandate last Thursday.

Paxton took that decision to the Texas Supreme Court on Monday, arguing in the filing that the 4th Court of Appeals’ ruling adds to the confusion over mask requirements in Texas, and asked for “urgent” action.

Paxton wrote that the 4th Court’s action “upends, rather than preserves, the status quo. The court of appeals’ decision thereby compounds the widespread confusion over mask mandates in Texas and frustrates the state’s ability to cohesively address the pandemic.”

The 4th Court of Appeals had judged keeping a local mask mandate maintains the status quo, as a previous temporary restraining order granted on Aug. 10 first put the mandates in place in San Antonio and Bexar County.

Paxton also argued that the state’s high court must take quick action because other cities and counties are being granted their own temporary orders allowing them to require masks despite the governor’s executive order prohibiting that.

See here and here for some background. The 4th Court of Appeals issued its order denying the request for a stay on the same day that the Supreme Court batted back the request it had received in the Harris County case. They could act quickly or they could sit on this and wait for action from other courts, because Lord knows there’s a ton of litigation out there.

Speaking of other litigation

A Dallas County judge today will decide whether Texas Gov. Greg Abbott has the authority to prevent local officials from imposing public health measures like mask mandates. It’s the latest in a dramatic and fast-moving court battle over the issue in the state.

At today’s hearing, the judge will likely hear evidence and testimony about the pandemic’s impact and the efficacy of mask-wearing to stop the spread of the COVID-19 delta variant as well as legal arguments about the Texas Disaster Act.

Dallas County Judge Clay Jenkins and his legal team, who are requesting a temporary injunction against Abbott’s order, say mask-wearing is the best way to save lives and slow the pandemic while they wait for people to get the vaccine. They’ll also argue that Jenkins, the county’s chief administrator who has emergency management powers, has the legal authority to issue executive orders to mandate such rules.

“We need protection for citizens in Dallas County, we need protection for the economy of Dallas County,” Charla Aldous, one of Jenkins’ attorneys, said at the hearing Tuesday morning. “The bottom line: We are here because Judge Jenkins wants to do his job.”

Abbott and Texas Attorney General Ken Paxton say the governor’s executive order, GA-38 — which bans mask mandates — is legal because the Texas Disaster Act gives him the power to ban Jenkins and other local officials like school districts from requiring masks.

Benjamin Dower, a lawyer with the Texas Attorney General’s Office, said the state would produce no witnesses and that the testimony from Jenkins’ witnesses weren’t relevant to temporary injunction hearing.

“None of this is actually relevant to the matter the court has to decide,” Dower said. “This is really a question of law, not fact.”

Judge Tonya Parker, of the 116th Civil District Court, will decide today whether to grant a temporary injunction barring the governor’s order. She previously granted a temporary restraining order doing just that.

The restraining order hearing was to prove whether there would be harm if Abbott’s ban were enforced. The temporary injunction hearing scheduled for this morning is to decide whether the decision should be more permanent. The judge will hear evidence on the matter, but Jenkins’ legal team must still prove immediate harm from Abbott’s order.

See here and here for some background; yes, all of this litigation is hard to keep track of. This post is likely to be already out of date by the time it publishes in the morning. I’ll update it then. Hold onto your butts in the meantime.

UPDATE: No news on the Dallas case yet. Maybe by this time tomorrow.

More teenagers are getting vaccinated

Good, but not enough in itself.

As a third COVID wave coincides with the back-to-school season, more Texas teenagers are getting the vaccine — but health experts say they need to see shots increase in even larger numbers to protect children from the delta variant.

Vaccinations have gone up recently among all Texas age groups, especially for those under 50, and they’ve more than doubled over the past six weeks for 12- to 17-year-olds.

In the last week of June, about 36,000 Texans under 18 got a shot — the lowest point to date — but that number shot up to 86,000 two weeks ago and remained there last week, according to new data from the state health department.

The jump is promising for public health experts, who stress that vaccines are the best way to avoid severe illness and slow the spread of the coronavirus. Still, youth vaccination rates are the lowest of all age groups in Texas, with just 49 percent of those under 18 getting at least one shot, compared to much higher rates for their elders.

“The percent of adolescents that are eligible for vaccination and have been vaccinated, certainly in Houston and in Texas, is still quite low,” said Dr. Stan Spinner, the vice president and chief medical officer for Texas Children’s Pediatrics and Texas Children’s Urgent Care in Houston. “Yes, the numbers are going up. That’s encouraging. But they’re not going up fast enough.”

About 46 percent of 12- to 15-year-olds, who have been eligible for the Pfizer vaccine since May, have received a shot. Roughly 55 percent of 16- and 17-year-olds have gotten the shot, according to the health department data.

Meanwhile, the number of pediatric COVID cases and hospitalizations has exploded — more than 500 children are currently hospitalized with the virus in Texas. Children account for about 20 percent of all positive COVID tests at Texas Medical Center, Spinner said.

“They are the major component of the population that’s vulnerable,” he said. “They have not been able to get vaccinated, and we know kids get it. We’re seeing it. It’s not a myth. We’re seeing it in larger numbers than ever.”

The increase in vaccinations is unequivocally good, I want to be clear about that. But there are still two concerns. One is that the rate of increase is not enough. About one-fourth of all Texans are under 18, which means in absolute terms between seven and eight million people. Not all of them are currently eligible for the vaccine, but at a rough guess it’s probably two to three million. Even at 100K shots a week, it’ll take us months and months to get to a sufficient level of immunization. We need to increase that 86K figure by a factor of at least five, maybe even ten.

And two, as we well know, while even the first shot conveys some extra level of protection from COVID from the get-go, it takes a month from the first shot to be really protected. We need to be doing more in the here and now to help mitigate the spread of this plague. We all know the drill – masking, avoiding indoor gatherings, social distancing – but as long as our malicious Governor and malignant Attorney General are doing everything in their power to prevent those things, we’re going to continue putting everyone in a maximal amount of jeopardy. We’ve already seen high infection rates in school districts that have been open, and several districts forced to close down in person instruction in the short term. We know what needs to be done. It’s Greg Abbott and Ken Paxton and Dan Patrick who want to stop us from doing them. We can’t let them put our kids, and ourselves, in such danger.

The approval and the mandates

As I’m sure you’ve heard by now, the FDA has given its final approval to the Pfizer vaccine for COVID-19. That should mean a lot of good things, but among them it should mean broader vaccine mandates are now in play.

The U.S. Food and Drug Administration’s full approval of the Pfizer vaccine Monday is cracking open the door for Texas cities, counties and school districts to compel their employees to get vaccinated against COVID-19 — moves previously blocked by Gov. Greg Abbott.

Abbott had banned public schools and local governments from enacting their own vaccine mandates. But the governor’s executive order specifies that the ban on mandates applies to COVID-19 vaccines that are under emergency authorization — a designation that no longer applies to the Pfizer two-dose vaccination.

Already, one major school district is pressing forward with its plan to require vaccinations for teachers and staff.

Pedro Martinez, superintendent for San Antonio Independent School District, called for mandatory employee vaccinations last week — drawing a lawsuit from Attorney General Ken Paxton, who accused the district and Martinez of breaching Abbott’s ban on vaccine mandates.

But with the FDA’s approval, San Antonio school officials are moving forward with their vaccine requirement for district employees.

In a statement, Martinez called the FDA approval “a positive step forward in the fight against COVID-19 nationwide and a step forward in helping keep schools safe for learning here at home.”

Here’s Superintendent Martinez on CNN discussing his fight against Greg Abbott over this. Most of the fights so far have been about mask mandates, but as we noted recently, San Antonio ISD has notified its employees that they must get vaccinated, which has drawn a lawsuit from Ken Paxton. Which, apparently, has been withdrawn now, as the executive order against vaccine mandates only covered “vaccines administered under an emergency use authorization”.

Here’s more from the Chron.

The Pfizer vaccine’s change in status appears to give cities, school districts and universities a way around the governor’s ban.

“Receiving a COVID-19 vaccine under an emergency use authorization is always voluntary in Texas and will never be mandated by the government, but it is strongly encouraged for those eligible to receive one,” Abbott’s most recent executive order reads.

A spokeswoman for Abbott did not immediately respond to a request for comment on Monday.

The update means San Antonio Independent School District, which was sued by the state after requiring its employees to get the shots by Oct. 15, is still moving forward with its mandate. The district had clarified late last week that it would not compel workers to get a vaccine that wasn’t fully approved by the FDA.

Attorney General Ken Paxton touted that as a win in a news release Monday, distributed less than an hour after the FDA granted full approval.

“State law could not be clearer: ‘No governmental entity can compel any individual to receive a COVID-19 vaccine administered under an emergency use authorization,’” Paxton said in the release. “But San Antonio ISD tried to play by its own set of rules. Thankfully, we stopped them.”

San Antonio school officials say the full authorization now allows the district to go ahead with its requirement that all employees get the shots by mid-October, they say. In his clarification statement last week, Superintendent Pedro Martinez had stipulated that the timeline would only change if the FDA hadn’t fully authorized the vaccine by Sept. 10.

Hey, if you want to declare victory while you’re surrendering and retreating, it’s fine by me. Just keep on surrendering and retreating, that’s all I ask.

The remaining questions are 1) What about Moderna and J&J; 2) What will other government entities do about this new ability; and 3) What about the mask mandates? In short,

1) “In May, Pfizer and BioNTech submitted their license application. Moderna began its application in June, and Johnson & Johnson said it will begin the process later this year.” As such, I’d assume the Moderna approval will come sometime in September or October, and J&J will be later than that. But most people have Pfizer or Moderna shots, so that’s the main thing.

2) My guess is they will move more slowly, but once the first domino falls I’d expect others to follow quickly. Note that this will be about mandates for local government employees, not residents. It’ll help, but it won’t apply to everyone.

3) Not the same thing, so we’re still waiting for the lawsuits to play out.

In the meantime, go tell all your vax-hesitant family, friends, neighbors, co-workers, acquaintances, and whoever else that now is the time for them to get their shots. It’s all officially approved, there’s no need to wait any longer.

The status of the mask mandate lawsuits

The Chron does a roundup.

Texas courtrooms have become a busy place this August, with Attorney General Ken Paxton battling school districts, cities, counties and nonprofits to defend Gov. Greg Abbott’s ban on local mask mandates aimed at preventing the spread of COVID-19.

Tracking the status of lawsuits can be dizzying.

“The way I like to think about it is there are four big buckets of cases and then there are some little minor cases out there,” said Harris County Attorney Christian Menefee, whose county has sued both Paxton and Abbott over the ban on mask orders.

Those buckets include Harris County’s lawsuit; one brought by a group of school districts; one from Bexar County and San Antonio; and one from Dallas County. Those cases are the furthest along in the legal process, Menefee said, and he expects a final decision on Abbott’s mask order rules to come from one of those cases.

Harris County’s lawsuit and the school districts’ are proceeding along the same track, Menefee said. Local officials cheered a ruling late Thursday by the state Supreme Court, on a procedural question, that allowed the county’s mask mandate to stay in place for now.

The all-Republican high court could have ruled on the merits of the question, but chose not to, instead punting it to a lower court. This signals that the court isn’t yet prepared to offer a final decision on whether or not mask mandates across the state will be allowed to remain in place, he said.

“They could rule whenever. The fact that they haven’t issued a ruling I think is encouraging because I think that means they’re thinking about it,” Menefee said. “If they do that, that’s going to be the law of the land for Texas,” applying to all cases.

[…]

In Bexar County and San Antonio’s case, local officials won a temporary injunction from an appeal, allowing their mask mandates to remain in place while their case is pending. A trial is scheduled for December. Paxton’s office is likely to appeal that to the state Supreme Court.

Meanwhile, Dallas County is fighting for a temporary restraining order to allow it to keep the mask mandate in place for the short term, a step that precedes arguments over a temporary injunction. That decision would last longer, months rather than weeks.

The stragglers, as Menefee described them, include a Fort Bend County case and a lawsuit from the Southern Center for Child Advocacy over many of the same issues.

A Fort Bend County district judge on Thursday granted the county a temporary injunction it its legal challenge to Abbott’s ban on mask mandates. County Judge KP George said it “removed the hurdles that have prevented our municipalities and school districts from taking the same action to protect their communities and the children…”

Thursday’s ruling should remain in place until the issue goes to trial in at least 45 days. Or Paxton could appeal the lower court’s decision to the state Supreme Court, as he has others, leaving it up to them to decide.

Hope that helps a little. And as a reminder of the legal questions, Erica Greider talks to an expert.

Steve Vladeck, a professor at the University of Texas School at Law, reckons that local officials still face an uphill battle in their legal battles.

The Supreme Court of Texas, he explained, didn’t side against the state on the substantive question. It simply concluded that Paxton had skipped a step in the legal process, meaning that the statewide restraining order against Abbott’s executive order remains in effect while Paxton retraces his steps.

The TEA guidance on masks, similarly, isn’t a policy change on the agency’s part; rather, it’s a recognition that a temporary restraining order issued by Travis County District Judge Jan Soife blocking the enforcement of Abbott’s latest executive order remains in effect, while litigation is pending.

“The real bottom line is that Judge Soifer’s TROs are still in effect today, but they may not be tomorrow,” Vladeck said.

Vladeck thinks it’s more likely than not that the state’s highest court will eventually side with Abbott; after all, he noted, it previously issued stays against local mask mandates issued in Dallas and Bexar County — that’s “more than nothing, when it comes to reading tea leaves.”

At the heart of the case, Vladeck continued, are genuine substantive questions about the scope of the governor’s powers under the Texas Disaster Act of 1975.

“I think we can safely say they’re broad,” Vladeck said. “The problem is they’re surely not limitless.”

Judge Soifer, you may recall, ruled in both the Harris County case and the Southern Center for Child Advocacy case. As we have seen, there is a range of opinion on this litigation from the legal community. I tend to think Vladeck is right about what will happen – however subtle some of the legal questions are, there’s also the politics of it, and the Supreme Court is much more likely to give Greg Abbott what he wants than not – but it’s not an obvious question to answer. We should know more pretty quickly.

The mask rebellion

Sweet, sweet music to the ears.

The local mask rebellion, coupled with the fresh threat of legal action from President Joe Biden’s administration, poses the most serious challenge yet to [Gov. Greg] Abbott’s emergency powers, which he has wielded in unprecedented ways that have drawn intense criticism both from Democrats and from some conservatives.

[…]

Many school boards and superintendents are stuck between conflicting requirements from the governor and their local health departments, while others feel that masks are essential and that they have the authority to control their own schools, regardless of the governor’s wishes.

“I don’t think the governor has an MD next to his name,” said Conrado Garcia, superintendent of West Oso Independent School District in Corpus Christi. “We’re just trying to help our kids, and maybe what’s missing is some of that kind of thinking.”

West Oso is one of 58 school districts deemed “noncompliant” with Abbott’s order by Attorney General Ken Paxton, who is publishing a list of the rogue government entities.

At last count, the list also included three charter school groups, one city and eight counties — Bexar, Cameron, Dallas, Harris, Hays, Hidalgo, Nueces and Travis — for a total of 70 entities. Paxton, who is also suing to overturn some of the local mandates, encouraged the public to notify his office of any “violator” that was not included on the list.

Garcia said he hopes Abbott will come around on the local mask mandates.

“Our intention is not to fight the governor, our intentions are that he will realize that there’s so many parents, and the list is growing of the number of school districts that are passing more and more resolutions,” Garcia said. “So I think eventually, somewhere, somehow, common sense dictates to me that if you’re hearing from that many people, I hope that he will compromise and let us continue with our work.”

The cases pose a new legal test for Abbott, whose emergency orders withstood early challenges from the right, filed by conservative groups that argued against business closures and the governor’s own mask mandate.

The Texas Supreme Court decided last year that it didn’t have standing to take up those cases, though Justice John Devine nonetheless issued an opinion in which he critiqued a portion of state law that allows the governor to suspend certain laws and rules during emergencies.

“I find it difficult to square this statute, and the orders made under it, with the Texas Constitution,” Devine wrote, noting that only the Legislature — not the judiciary or executive branches — has constitutional power to suspend laws.

In the latest mask challenges, local officials are citing the same portion of state law, but with the opposite intent: to stop Abbott from blocking local action aimed at blunting the spread of COVID. In cases involving San Antonio’s and Dallas’ mask mandates, local officials have argued that Abbott may suspend only local orders that would “in any way prevent, hinder or delay necessary action in coping with a disaster.”

Ron Beal, an attorney and former administrative law professor at Baylor University, sided with the local officials in an amicus brief submitted to the state Supreme Court on Monday.

“It is wholly inconsistent with the legislative intent for the governor to consciously and knowingly not meet or prevent the dangers, but to enhance them,” Beal said. “There is simply no language in the statute that empowers the governor to give citizens permission to prolong the disaster. It is thereby void.”

[Dale Carpenter, a constitutional law professor at Southern Methodist University], said the case raises difficult constitutional questions for the conservative jurists on the court.

“That cuts a number of ways in this case, both for and against the governor, because he’s acting in a way that many conservatives believe is reinforcing individual rights to choice, choice about wearing masks specifically,” Carpenter said. “But I think the court certainly doesn’t want to issue an opinion that says the governor’s the commander-in-chief and he can do what he wants, and not qualify that opinion a lot.”

[…]

Paris ISD, in Northeast Texas, has taken a novel approach to its own mask mandate. While other districts have argued that health data or conflicting local requirements required them to ignore Abbott’s order, Paris ISD’s board simply amended its dress code to include a mask.

The lawyer for the district, Dennis Eichelbaum, argues that so long as the state’s education law remains in place, school districts have the exclusive right to govern themselves. Unless Abbott decides to use his emergency powers to suspend that law, Eichelbaum argues, school districts can institute mask mandates.

“We’ve always had dress codes. It’s very common in Texas. And this is no different, really, than saying we’re requiring our students to wear shoes,” he said. “I can’t explain why other law firms weren’t as creative, but it seems pretty simple to me.”

Eichelbaum argued that Abbott’s executive order is vague and inconsistently enforced, pointing to requirements that students wear face masks during welding class or that baseball catchers and football players wear face protection. Amending a dress code to include masks to protect against COVID is no different, Eichelbaum said.

Obviously, I am delighted by the resistance to Abbott’s shameful demagoguery on this issue. Abbott, who has made a career out of defying federal laws and directives he doesn’t like, deserves no sympathy for any of this. I don’t know what the Supreme Court will do, though their refusal to just call an end to all the litigation is moderately heartening, and I appreciate the legal analysis in this story. There’s at least a chance that common sense can prevail, and that’s more than we’ve had around here in awhile.

I will say, it’s been this kind of resistance to Abbott’s anti-mask mandate, which as noted has come from some red areas as well as the cities, that makes me give some credence to that Spectrum/Ipsos poll. Abbott may only care about the most fervid of Republican primary voters, but mayors and school boards have to answer to a broader electorate, and some of them will be facing that music this year. Maybe one of the HISD Trustee candidates, especially one in a district formerly held by a Republican, will base their campaign on an anti-mask platform, but if so I haven’t seen any evidence of it yet. If nothing else, this is a big campaign issue for next year, when we finally get a candidate for Governor out there.

A few words from the CEO of the Medical Center

From an interview he did with Lisa Gray.

What we’re seeing, sadly, is more of the same, only with more intense numbers. The number of people who are testing positive in our community continues to escalate month over month. The test positivity rate is now at 15.1 percent.

But probably the most accurate reflection is our hospitalizations. We just reached an all-time high: 421 people were admitted to our hospitals for COVID yesterday.

Step back for a second and look at that relative to the entire pandemic. Back in June and July, we had two weeks where the average number of hospital admissions was over 300. That was in the second wave.

Fast forward to wave three: We had four weeks that averaged over 300.

Now we are into our second week with no slowing the pace. At 421 today, we are seeing the highest peak of all of the pandemic going back 18 months now.

It’s largely a pandemic of the unwilling — people unwilling to be vaccinated. Now 44% of Houstonians are unvaccinated. Those are the vast majority of the people that are showing up in our emergency rooms and and in our ICUs. They’re very sick.

Many people thought that they were young, and therefore their immune system would be strong enough to protect them. That is not the case with this deadly delta variant, which is three times more transmissible than the earlier alpha variant.

Our hospitals’ staffs are 18 months into this. They’re exhausted.

And we have far fewer nurses than we used to have. They’re being recruited to other states, like Florida, that are even worse off than Texas.

The saddest fact is, 18 percent of all the new cases so far in August are children.

With the alpha variant, everyone thought, “OK, it’s 65 and older.” So we went after the nursing homes, and we did a brilliant job at protecting the elderly population and those who are immunocompromised.

But now, that vulnerable population is children under 12, who are not able to be vaccinated. We are predicting a mess in our schools. With nearly 20 percent of new cases being children, now we’re going to huddle them together in schools? Some may have masks. Some may not. It’s a recipe for disaster.

You can read the rest or give it a listen, but his answer to the first question tells you most of what you need to know. Hospitals around the state have been facing a similar crisis. I keep harping on this because it needs to be harped on, as we have a governor who can’t follow his own dictum about “responsible behavior”, a felonious Attorney General who’s soliciting snitches so he can go after rogue mask mandates, and a Legislature that wants to ban mask mandates forever. This is what we’re up against.

I don’t know if I’d call this “good news”, but the projections say we can see the beginning of the end from here.

While hospitalization numbers are nearing the heights they reached during the state’s most fatal surge in January, public health projections indicate that the latest wave will result in fewer deaths — mostly because senior citizens are widely vaccinated and hospital patients are now much younger. Still, state health officials are preparing for the worst, preemptively ordering a fleet of five mortuary trailers from the federal government in case infections spiral.

Public health experts still expect at least some increase in coronavirus deaths over the coming weeks, as fatalities are a lagging indicator — cases rise first, then hospitalizations, then intensive care usage, then deaths.

Now, the state is averaging about 100 daily deaths, a number not expected to exceed 150 over the next month before tapering off. That’s nowhere near the 350 COVID deaths per day that the state saw in January.

“We’ll go up some, but again, not to the levels that we saw back in January,” said Dr. David Lakey, the vice chancellor for health affairs and chief medical officer at the University of Texas system, referencing the forecasts.

Still, the precipitous rise in hospitalizations is a cause for concern. More than 12,000 Texans were in the hospital with the virus on Wednesday, with dozens of Texas hospitals running out of ICU beds (during the winter surge, hospitalizations peaked at just over 14,000). Patients are younger than they were in the first two waves of the virus, and almost everyone facing severe illness is unvaccinated.

[…]

Projection models following Texas’ daily COVID case and hospitalization counts anticipate a rise in deaths in the near future. By mid-September, a model offered by the U.S. Centers for Disease Control and Prevention estimates that the Lone Star State will see about 790 deaths per week, or roughly 113 per day.

Another model, produced by researchers at the Institute for Health Metrics and Evaluation at the University of Washington, projects about 125 deaths per day by mid-September in a worst-case scenario. In both forecasts, it appears that the state has already seen the brunt of its COVID deaths.

That’s largely because the vast majority of Texas’ over-65 population — those most vulnerable to the coronavirus — have received at least one dose of the vaccine, experts said.

“Those that were most at risk of having severe disease have some protection, and that’s good protection because of the vaccine,” Lakey said.

While a spike in hospitalizations and ICU bed usage does portend fatalities, the relationship between those data points will be less “linear” during the third wave, he said. It remains to be seen whether young patients will have other, long-term side effects of the virus — what some are calling “long COVID.”

Deaths will also decrease as more people become vaccinated or recover from the illness, said Dr. Ali Mokdad, a professor of health metric science at the University of Washington’s Institute for Health Metrics and Evaluation. The institute’s researchers estimate that about 74 percent of Texans will be immune to the delta variant, either through infection or vaccination, by Dec. 1.

“The virus is running out of people to infect,” he said.

The forecasts should not be interpreted as an assured outcome, though. Public buy-in on safety precautions, including mask-wearing, will ultimately determine the trajectory of the third wave.

In other words, don’t expect a best-case outcome, because we’re not allowed to do the things we need to do to make this less awful. Note also that while extensive vaccinations among older folks will help to limit fatalities, there will still be an excess of deaths in the coming weeks because of the overfilled hospitals – people with other serious conditions will die as a result, as was the case in the previous waves. Now is a very bad time to have a heart attack or be in a car crash.

At least there is a rise in the rate of people getting vaccinated, now that the threat is so much higher. Some of that is the result of mandates and restrictions on unvaccinated people, some is due to pressures and enticements from employers, and some is due to straight up financial rewards. Whatever it takes, whatever it takes.

SCOTx demurs

Very interesting:

This was for the Harris County litigation, which included Austin and several South Texas school districts. As such, Harris County’s mask mandate is still in effect. This is a procedural ruling, just telling Ken Paxton he needs to follow the law and go through the appellate courts first, and as such it buys some time. Given how accommodating SCOTx has generally been, it’s nice that they’re not fast-tracking any of this. I doubt it makes much difference in the end, but it matters now.

By the way, if you heard that Greg Abbott was dropping enforcement of school mask mandate bans, that simply isn’t so. Abbott and Paxton can go via the appellate courts as before and as they should have here, and the case will eventually make its way back to SCOTx, where they will likely give the state what it wants. Everything is temporary and in a state of flux right now.

Speaking of the appellate courts:

After Gov. Greg Abbott appealed a temporary order that allowed for mask mandates in schools and city- and county-owned buildings, the 4th Court of Appeals ruled Thursday that the order still stands.

On Monday, Judge Antonia “Toni” Arteaga of the 57th Civil District Court granted San Antonio and Bexar County a temporary injunction, allowing the mask mandates in city- and county-owned buildings and in schools to continue until a trial is held. The city and county sued the governor earlier this month over the ability to issue mask mandates.

Texas Attorney General Ken Paxton appealed the district court’s ruling on behalf of Abbott, arguing that his appeal automatically blocked the San Antonio and Bexar County mask mandate. While city attorneys disagreed, they still asked the 4th Court of Appeals on Tuesday to officially uphold the temporary injunction.

In an order issued Thursday, the 4th Court of Appeals reasoned that allowing local governments to have policies to protect public health maintained the status quo, while Abbott actually changed it with his July executive order prohibiting governmental entities from mandating masks.

The court also cited testimony given during the Monday hearing from Dr. Junda Woo, the medical director of the San Antonio Metropolitan Health District, and San Antonio City Manager Erik Walsh. Both said that requiring masks will help slow the spread of the delta variant, which is much more transmissible than previous coronavirus strains. They also pointed to the vulnerability of schoolchildren under the age of 12 who are not yet eligible for the coronavirus vaccine.

“Based on the temporary injunction order and the evidence attached to the emergency motion, the City and County have demonstrated that reinstating the trial court’s temporary injunction is necessary to prevent irreparable harm and preserve their rights during the pendency of this accelerated appeal,” the appellate judges wrote. “The circumstances of this case are unique and, quite frankly, unprecedented.”

See here for the background. This ruling means that the Bexar County mandate can remain in place until the hearing for the temporary injunction, which will be December 13. Except, of course, that Abbott and Paxton can appeal this ruling to SCOTx, and having gone through the proper channels this time, the same reason to reject the other TRO will not be in effect. Expect this to get a ruling from SCOTx in the next couple of days.

In the meantime:

A Fort Bend County district judge on Thursday granted the county’s application for a temporary injunction, siding with local officials in their fight against Gov. Greg Abbott’s ban on mask mandates.

Judge J. Christian Becerra of the 434th District Court approved the county’s application for the temporary injunction following a day’s worth of testimony in his courtroom.

The Fort Bend County public health director and a local hospital administrator testified to the healthcare emergency currently facing the Southeast Texas region. Both said they believe mask mandates would help mitigate the spread.

Fort Bend ISD had not gone along with implementing a mask mandate initially. This may change that, we’ll see. This was a late-breaking story, there will be more details to come.

And finally, just to show that you can’t keep Ken Paxton down:

Texas Attorney General Ken Paxton sued the San Antonio Independent School District Thursday after its superintendent said he’ll require all staff to get vaccinated against COVID-19 before an October 15 deadline.

The suit, filed in Bexar County District Court and shared by Courthouse News Service, argues that a July 29 order by Gov. Greg Abbott bars any public entity in the state from mandating that people take the vaccine. That order supersedes SAISD’s ability to require inoculations of its staff, the state claims.

“Defendants challenge the policy choices made by the state’s commander in chief during times of disaster,” according to the petition.

SAISD is believed to be the first large Texas school district to make vaccines mandatory. Superintendent Pedro Martinez’s demand comes during a statewide surge of COVID-19 cases as children too young to be vaccinated head back for a new school year.

“For us, it is about safety and stability in our classrooms,” Martinez told the Express-News this week. “We cannot afford to have threats to those two goals.”

Martinez also told the daily that the legal implications of his order weren’t a consideration.

A mask mandate is one thing, a vaccine mandate is another, at least in terms of waving a red flag in front of Abbott and Paxton. I expect Paxton to prevail, though we’ll see if he gets his restraining order from the district court judge or if he has to go up the ladder.

UPDATE: Here’s the Trib story about that SCOTx refusal to put a stay on the Travis County judge’s rulings, and here’s the Chron story. There’s so much damn news these days I just go with what’s in front of me when I’m ready to start writing, and circle back as needed.

Using the dress code to skirt the ban on mask mandates

Brilliant!

The Paris school district found a loophole in Texas Gov. Greg Abbott’s executive order preventing mask mandates across the state.

Paris ISD’s board of trustees voted to alter the district’s dress code to include masks, according to its website.

The school district, which is located about 100 miles northeast of Dallas, has nearly 4,000 students across eight campuses, according to the National Center for Education Statistics.

“The Texas Governor does not have the authority to usurp the Board of Trustees’ exclusive power and duty to govern and oversee the management of the public schools of the district,” Paris ISD said in a release posted on its website. “Nothing in the Governor’s Executive Order 38 states he has suspended Chapter 11 of the Texas Education Code, and therefore the Board has elected to amend its dress code consistent with its statutory authority.”

[…]

“The Board of Trustees is concerned about the health and safety of its students and employees,” the Paris ISD release says. “The Board believes the dress code can be used to mitigate communicable health issues, and therefore has amended the PISD dress code to protect our students and employees.”

Pretty damn clever, if you ask me. I’m sure Ken Paxton will file a writ of mandamus with the Supreme Court to stop them, and who knows what happens after that, but I hope other school districts are looking at this and thinking about it. By the way, Paris TX is in Lamar County, which voted about 80% for Trump in 2020. Not exactly a big liberal city taking this action here, is what I’m saying.

And sigh speaking of Paxton:

Paxton asked the Texas Supreme Court on Tuesday to overrule a Travis County judge who over the weekend allowed mask mandates to proceed in any school district in the state.

State District Judge Jan Soifer issued temporary restraining orders against Gov. Greg Abbott’s ban on mask mandates, clearing the way for Harris County and eight school districts to enact their own mask-wearing rules. Soifer also barred Abbott from enforcing his order “against Texas independent school districts.”

[…]

“The ongoing disregard of the law by certain local officials is causing mass confusion in Texas, necessitating intervention by this Court to provide clarity and statewide uniformity,” Paxton’s office wrote to Supreme Court justices Tuesday.

Abbott and Paxton have had some legal victories — albeit short-lived ones. The high court sided with Abbott and Paxton on Sunday and temporarily shut down mask mandates in Bexar and Dallas counties. But the court allowed legal challenges to continue playing out.

If I’m reading this correctly, this filing goes after both the Harris County temporary restraining order and the Southern Center for Child Advocacy TRO, both of which were handed down by Judge Soifer. As the story notes, while SCOTx has obliged the request to stay the TROs, it has not as yet put a halt to any of the lawsuits that have been filed, which Paxton has been asking for. As such, with one exception in Fort Worth no school district that has put forth a mask mandate has been barred from doing so, at least so far.

In the meantime, school districts are doing what they can do to keep the kids safe, which means keeping masks on.

Houston ISD is among those taking a hardline approach to enforcing their mask mandates, with threats of being sent home and disciplinary action for students who refuse to cover their faces. Other districts said they have no such plans and are hopeful that all students and staff members will abide by the face covering requirement without stirring up drama.

Keyhla Calderon-Lugo, a spokeswoman for Edgewood ISD in San Antonio, said the only students who showed up on campus without masks on Monday, the first day of school, did so by accident.

“We have surveyed our parents and have been in continuous communication with them,” Calderon-Lugo said. “For us, our community has been cooperating greatly with the guidelines and safety protocols established by the district.”

\Many school administrators think mask-reluctant children may just need a nudge. Almost across the board, districts with mandates in place have provided schools with extra masks and instructed staff to offer them to students who show up on campus without a face covering.

“We’re assuming that they didn’t have one, not that they don’t want to wear one,” said Sheleah Reed, a spokeswoman for Aldine ISD. “Our hope is that we keep students in class. Our goal is not to send them home. We’ve worked really hard to get all 67,000 of our students back to in-person learning.”

Where school districts diverge is when students refuse to wear masks after being offered one.

North of Austin, Pflugerville ISD is “certainly not denying any student access to school,” said spokeswoman Tamra Spence, who added that she was “not aware of any specific instances where a resolution hasn’t been reached” with children who have arrived unmasked since classes resumed Monday.

Some districts say they will segregate the unmasked students from those with masks.

At Houston ISD schools, students who refuse to wear masks will be “placed in a separate area” and their parents or guardians contacted. Those who continue to refuse will be told to stay home, marked absent and offered temporary online learning, according to district guidance.

Dallas ISD, meanwhile, is working with its schools to provide separate rooms where students who decline to follow the mask mandate will continue to receive instruction, Superintendent Michael Hinojosa said Sunday. He described Dallas ISD’s approach to enforcing its mask requirement as “nice but firm,” and noted that the district had not had any problems since its mandate took effect Aug. 10.

“We’re going to be benevolent. We’re going to work with people. We’re going to offer masks,” Hinojosa said. “But we’re going to be firm. We have to protect the health and safety of our students.”

This could all be a lot simpler, and we could genuinely be doing our best to keep kids and teachers and staffers safe, if Greg Abbott would allow it. He is the reason for the confusion, and he deserves all of the defiance he is getting.

HISD warns of “consequences” for not complying with their mask mandate

Consequences are, well, a natural consequence of non-compliance.

Houston ISD students and employees who refuse to wear masks when the school year begins could face discipline and be forced to temporarily learn online under new guidelines released by the district.

With exceptions and reasonable accommodations made for people with a “documented medical disability,” the district’s updated back-to-school plan, released Friday evening, says that those who refuse to comply with the mask mandate will face consequences.

HISD Superintendent Millard House II implemented a mask requirement on all students, staff and visitors to all campuses and facilities last week, with the support of the board of trustees.

Under the new rules, laid out in the district’s “Ready, Set, Go” plan, if a student is not wearing a mask, one will be provided. Students who refuse to wear masks will be “placed in a separate area” and their parents or guardians contacted. Students who continue to refuse to use face masks will be directed to stay home, marked absent and offered temporary online learning. Kids who refuse to wear face coverings on buses also may have their transportation privileges suspended.

An employee who refuses to wear a mask will be sent home for one day on administrative leave. A second occurrence will result in the employee being sent home and his or her personal time docked. If an employee violates the mandate a third time, he or she will face discipline, be sent home and personal time docked.

[…]

Jackie Anderson, president of the Houston Federation of Teachers, said she thinks HISD Superintendent Millard House is making the right move with the new rules.

“I feel that he’s trying to do what is best for staff and students,” she said. “Employers have a right to do what they think is best for their employees.”

However, like all disciplinary actions, the union will defend its members who face consequences for not wearing masks.

“We would defend any member facing any disciplinary action,” she said. “We have an obligation to do that.”

See here for some background; I missed the story where HISD approved the proposal. I agree completely with this approach. Put the burden on the people who refuse to comply. There’s no better way to maximize compliance. We’ll see what the legal situation looks like on Monday, but I fully support this approach.

The alternative looks something like this:

With the official return of students to campuses in Katy ISD slated for Wednesday, Aug. 18, the district reports it currently has 100 reported cases of COVID-19 throughout the district.

According to the district’s COVID-19 dashboard, the hardest-hit campuses are among the biggest in the district including:

Katy High School with six cases, including three staff members and three students.

[…]

While not mandated, the district encourages students and staff to wear face coverings when indoors, particularly for kindergarten through sixth-grade students until a COVID-19 vaccine is approved for students those ages.

Social distancing is encouraged, when possible.

Or this:

A small school district in West Texas has apparently become the first in the state this school year to temporarily shut its doors due to rising numbers of COVID-19 cases in the community.

An official of the Iraan-Sheffield Independent School District, with fewer than 400 students, announced Monday that it will close as of Tuesday and aims to reopen Aug. 30.

“This decision was made to ensure the safety of our students and staff as well as to make certain that we have appropriate staff available for each campus,” Superintendent Tracy Canter said in the statement.

Two small East Texas school districts — Bloomburg and Waskom — also planned to cancel classes at some schools this week due to the coronavirus, The Dallas Morning News reported.

[…]

The district’s back-to-school plan said masks were not required but were strongly encouraged.

Over the last week, COVID-19 hospitalizations in Pecos County, where Iraan is located, have risen from 9.5% to about 14.5% of hospital capacity, according to the Texas Department of State Health Services.

This is what “voluntary compliance” will get you. Give me mandatory compliance, if you want better results.