The 4th and 5th Court of Appeals both — within minutes — handed Gov. Greg Abbott two defeats in his bid to overturn mask mandates in Dallas and Bexar counties.
Earlier in the day, state district Judge Jan Soifer of the 345th Civil District Court granted Harris County and several Texas school districts (namely, Edinburg Consolidated, La Joya, Edcouch-Elsa, Hidalgo, Brownsville, and Crowley) permission — temporarily — to require masks and enact other safety measures designed to mitigate the spread of COVID-19.
In its opinion, the 5th Court of Appeals found that Abbott “has failed to show his entitlement to the relief requested,” adding that “… we conclude Judge Jenkins demonstrated a probable right to relief that the Governor’s power to suspend certain laws and rules under section 418.016(a) does not include the power to suspend the Act’s grant of authority to mayors and county judges to declare and manage local disasters under section 418.108.”
However, Fort Worth ISD walked back a mask mandate Friday after 141st District Court Judge John Chupp granted some district parents’ request for a temporary restraining order, ruling that Superintendent Kent Scribner didn’t have the authority — without bringing it to his school board for a vote — to issue the mandate.
The district said that it still believed that issuing the mandate was “the right thing to do,” but “we will certainly honor today’s court order blocking the mask requirement.”
Dallas ISD Superintendent Michael Hinojosa also did not see board approval before issuing his mandate, but many of the board members issued statements saying they agreed with the move, including board president Ben Mackey.
As it stands, four of the most populous counties in Texas have defied Gov. Greg Abbott’s executive order prohibiting cities, counties, and school districts from enacting their own mask mandates. Harris County Thursday became the latest county to enact mandates regarding masking, following Bexar, Travis, and Dallas counties.
Dallas ISD announced Monday that masks would be required, and Monday evening Austin ISD also announced masks would be required. Arlington ISD has indicated that it will possibly file a lawsuit against Abbott regarding the order, and will take up the matter at its board meeting next week.
This is not the last appellate stop for the issue.
Attorney General Ken Paxton immediately filed an appeal Friday night with the Texas Supreme Court, arguing that the Texas Disaster Act “definitively makes the Governor the ‘commander in chief’ of the State’s response to a disaster.”
Paxton also argued that the act gives Abbott the right to issue executive orders “that have the ‘force and effect of law.’”
Earlier in the week Paxton argued that “The Texas Legislature made the Governor — not some patchwork of county judges and city mayors — the leader of the State’s response to a statewide emergency.
“Local officials like Defendant Jenkins must recognize the fact that they are not above the law.”
The mandates follow rising cases of COVID-19 after a more virulent delta variant became more prevalent. On Friday, UT Southwestern Medical Center said doctors there have detected five cases of the lambda variant in patient samples taken between early June and about mid-July.