Top court blocks Abbott on masks
The Texas Supreme Court on Thursday decided to temporarily allow school districts and some local governments to require masks on their property, rejecting Attorney General Ken Paxton’s attempt to expedite his challenge to the mandates.
The court’s decision came within hours of new guidance from the Texas Education Agency that Republican Gov. Greg Abbott’s order banning mask requirements would not be enforced “as the result of the ongoing litigation.”
The agency also said schools must now notify all teachers, staff and families of students who come in contact with someone in a classroom or extracurricular activity who has tested positive for COVID-19. The policy, a reversal from the TEA’s prior guidance that made such notice optional, brought it
in line with orders from Harris County Judge Lina Hidalgo and other local officials who had required the notices anyway.
The high court’s decision, meanwhile, stalls Abbott’s efforts to ban mask requirements using his authority to control the state’s response to the COVID pandemic. Abbott and Paxton are seeking to overturn three separate rulings on the matter from a Travis County judge, one of which upholds Harris County’s mask mandate for schools and day care centers.
It is also another warning sign for Abbott, as dozens of Texas school districts defy him by requiring children to wear masks on campus. The governor has prohibited local mask orders since the spring, drawing withering criticism from the White House and local officials who argue the mandates are needed to protect vaccine-ineligible students amid a spike in COVID infections.
Abbott faces two notable conservative challengers in next year’s GOP primary who have sharply attacked the statewide mask order and various COVID restrictions he enacted last year.
Though Abbott’s disaster authority was repeatedly challenged in court early in the pandemic, legal experts say the battle over masks presents a new, and potentially steeper, legal test.
The all-Republican Supreme Court’s decision sends the lawsuit to Texas’ 3rd Court of Appeals, and its ruling will almost certainly be appealed back to the high court.
It was the high court’s second ruling this week on a mask-related lawsuit, after the justices on Sunday
restored Abbott’s ban on mask mandates in Bexar and Dallas counties.
Abbott, recovering from COVID-19 himself, could not be reached for comment Thursday. A former Texas Supreme Court justice and attorney general, Abbott has previously boasted of winning these sort of battles quickly with favorable rulings from the court.
Last year, Abbott brushed off concerns raised by critics that he was overstepping his disaster powers.
“I’ve been sued too many times for me to count. Every lawsuit that’s been filed against me … I either won in court or it’s been dismissed by the court or by the parties,” Abbott said at a news conference last August.
Local officials praised Thursday’s decision and the new state guidance, even as they braced for the legal saga to continue. Hidalgo, who issued Harris County’s mask order late last week in an effort to stem a surge of COVID-19 cases driven by the delta variant, called the ruling “a victory for our kids’ health.”
About 69 percent of Harris County residents ages 12 and up have received at least one dose of the COVID vaccine, while 57 percent are fully vaccinated, putting the county roughly in line with the nationwide rates. But the county is struggling with a spike in cases and hospitalizations. The Texas Medical Center admitted 429 new COVID patients Wednesday, a massive jump from the average of 58 daily hospitalizations recorded in early July.
The county has resorted to offering $100 gift cards to unvaccinated people who receive their shots.
“This is an important decision,” said Harris County Attorney
Christian Menefee, a Democrat. “It means Harris County’s orders mandating masks for employees and students stand for now. Our lawsuit against the governor will continue, and we’ll keep giving all we’ve got to ensure local officials and school districts can protect our students and immunocompromised.”
Menefee said he’s hopeful the high court will examine whether Abbott “is misusing the Disaster Act and needs to be reined in.”
The Texas Supreme Court has yet to consider the actual merits of the suits in Bexar, Dallas and Travis counties. All continue to work their way through the lower courts as students have been returning to school this month.
In Thursday’s ruling, the court rebuffed Paxton’s attempt to tack the Travis County case onto the one involving the halted local orders in Bexar and Dallas counties. Underscoring the confusing patchwork of lawsuits, the Travis
County case actually involves three separate court orders that authorize mask mandates in Harris County and all school districts in Texas.
In rejecting Paxton’s request to consolidate the lawsuits, the justices cited a provision that says a case “must be presented first to the court of appeals unless there is a compelling reason” to send it directly to the Supreme Court.
Eva Guzman, a former Texas Supreme Court justice who is challenging Paxton in the Republican primary for attorney general, criticized the incumbent for trying to bypass the appellate courts.
“Can’t ignore the rules. Can’t cut corners when it comes to practicing law,” Guzman said in a tweet. “Texas families will have to wait for a ruling from the Texas Supreme Court because the Texas AG didn’t follow the rules.”
Also on Thursday, Texas’ 4th Court of Appeals upheld San Antonio
and Bexar County’s mask requirement for schools and their own facilities, moving that case a step away from reaching the Supreme Court.
Bexar County Judge Nelson Wolff, who announced the ruling, said Paxton would almost certainly appeal the ruling to the high court, where he acknowledged local officials “haven’t done too well.”
The Dallas County case is in the earliest stages of the mask lawsuits, with a hearing scheduled before a state district judge on Tuesday. Dallas County Judge Clay Jenkins has kept his mask requirement in place for businesses and schools even after the Supreme Court ruling, though he lifted penalties for violators from his order.
Paxton’s office suffered another setback Thursday in Fort Bend County.
Judge J. Christian Becerra upheld County Judge KP George’s order requiring masks in county buildings, which he issued last week after the judge granted a temporary restraining order that suspended authority of Abbott’s executive order in Fort Bend. George’s order does not apply to schools in the county.
“By the court upholding the order on facial coverings, this keeps the doors open for our school districts to be champions in the fight against COVID and use the tools available to them to protect our children and their families,” said George, a Democrat. “We know that the best defense to keep our community safe and save lives is by wearing face coverings and being vaccinated against COVID-19.”