Texas Counties Win Court Orders Blocking Governor’s Mask Ban
(Bloomberg) -- Two Texas judges ruled that the governor cannot prevent counties from imposing local mask mandates.
Judges in Dallas and Bexar counties on Tuesday issued separate rulings temporarily blocking an executive order by Republican Governor Greg Abbott that outlaws local mask ordinances. Officials in San Antonio and Dallas filed lawsuits against the policy as Covid-19 infection rates and hospitalizations in Texas have soared, prompting the governor to ask hospitals to limit optional procedures to free up beds for more Covid victims.
Dallas County’s top elected official “cannot be precluded from implementing the mitigation strategies he believes are sound, reliable and backed by scientific evidence,” the judge ruled in that case. A temporary restraining order is in place until Aug. 24, when the judge set another hearing on the matter.
Abbott and other top Republican officials signaled they are far from done fighting local mask ordinances, although Texas has yet to respond to the judges’ temporary rulings in court filings.
“Governor Abbott’s determination to protect the rights and freedoms of all Texas people has not been shaken,” Abbott spokeswoman Renae Eze told reporters after yesterday’s rulings. She said the governor remains confident a higher Texas court will ultimately uphold his executive order forbidding mask mandates, just as the Texas Supreme Court upheld Abbott’s earlier Covid-related emergency edicts.
The rulings are part of a larger national debate over mask mandates as the highly contagious delta variant spreads. Florida parents have sued Governor Ron DeSantis for blocking local school district mask mandates, even as Covid infections and hospitalizations surge in that state. Abbott has repeatedly defended his stance as a call for personal responsibility over what he considers authoritarian action by the state.
The fight also implicates decisions by companies requiring customers to wear masks or show proof of vaccination. Norwegian Cruise Line Holdings Ltd. on Sunday won a preliminary injunction overriding a Florida law that prohibited the company from requiring passengers to prove they’d gotten Covid shots before boarding a ship.
At least seven states, including Arizona and Arkansas, have banned local school districts from requiring masks on students. Other states, like California and Washington, have required masks in public schools, but left flexibility for districts and private schools. The national Centers for Disease Control and Prevention recently updated its guidance, citing the nationwide upwelling of delta infections, that all school children and staff should wear masks while indoors.
Abbott’s order threatens school districts with hefty fines if they require students or staff to wear masks –- a requirement that school district leaders in San Antonio and Dallas have defiantly announced for the fall semester that begins in a few weeks.
In temporarily blocking the Texas governor’s mask ban, state judge Antonia Arteaga in Bexar County said local public health officials’ concerns for school children swayed her thinking. Another hearing is set for Aug. 16.
“The governor is not vested with authority to control everything that happens in the state,” Brent Walker, a lawyer for Dallas County’s top official said Tuesday in the Dallas court proceeding. “People are going to die unless we start doing more.”
Texas Attorney General Ken Paxton weighed in Wednesday with a pair of legal opinions aimed at local officials thinking of imposing additional Covid-related restrictions.
In one opinion, Paxton -- a political firebrand who spearheaded Texas’s lawsuit asking the U.S. Supreme Court to overturn the 2020 election in favor of ex-President Trump -- reminded officials that the Republican-controlled 2021 Texas Legislature passed a law blocking municipalities from requiring proof of vaccination status to gain access to their facilities. New York City recently said customers must show so-called vaccine passports in order to use indoor restaurants and gyms.
In a second opinion, Texas’s attorney general said he couldn’t “definitely conclude” whether Abbott’s mask ban conflicts with the mandate by the federal Centers for Disease Control and Prevention and the U.S. Transportation Security Administration that all passengers wear masks on public transportation. Local officials are the ones who technically enforce that mandate.
“However, a court could conclude that the CDC and the TSA lack statutory authority to issue the face covering orders, particularly with respect to intrastate public transit systems,” Paxton said in a statement accompanying his opinion, which isn’t legally binding. “Furthermore, a court may have a basis to conclude that TSA’s directive violates the Americans with Disabilities Act or is an unconstitutional attempt to commandeer local officials to enforce a federal regulatory scheme.”
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