While COVID-19 and its variants continue to sweep across the state, causing hospital bed shortages and debates about personal freedom, Texas courts find themselves in the middle of a legal battle regarding the executive power of local governments versus the executive power of Governor Greg Abbot.

On July 29, 2021, Governor Abbott issued Executive Order GA-38 pursuant to his powers under the Texas Disaster Act, which gives him broad powers to “issue executive orders having the force and effect of law” in disaster situations, such as COVID-19 has been declared. GA-38 was a sweeping proclamation regarding many of the issues regarding COVID-19, from vaccine passports to limiting occupancies of businesses to hospital bed capacities. GA-38 also prevented counties, cities, school districts, public health authorities, and government officials from mandating masks, albeit with several exceptions. Predictably, many local governmental officials were angered by this and have widely regarded GA-38 as a bad move.

Since the issuance of GA-38, local governmental entities across Texas—including Bexar, Dallas, Houston, and Travis counties—along with several cities such as Richardson and El Paso have filed lawsuits declaring GA-38 a usurpation of their local ability to protect citizens and school children from the virus. During the week of August 23, several rulings and counter-rulings were issued from courts across Texas.

On August 26, the Texas Supreme Court temporarily blocked the mask mandate made by the City of San Antonio and Bexar County. This mask mandate, only a week ago, had been allowed by the San Antonio Court of Appeals. The Texas Supreme Court determined that the oversight of decisions on mask mandates has been up to the governor thus far, and accordingly this is the status quo and should remain in place while the courts re-examine the issue more deeply.

On August 25, lighting rod Dallas County Judge Clay Jenkins obtained a temporary injunction preventing endorsement of GA-38. District Court Judge Tonya Parker found that GA-38  interfered with Judge Jenkins’ authority as an elected official to manage a declared local state of disaster in Dallas County. Accordingly, Judge Parker granted the temporary injunction against Governor Abbott, restraining him from enforcing GA-38. Judge Parker’s ruling came after the Texas Supreme Court stayed her previously granted restraining order in the case. Judge Jenkins had modified his mask mandate since that stay by removing a $1,000 fine, effectively removing any enforcement mechanism for the mandate.

Much as the final determinations on these issues are still undecided, the practical effect of any final ruling is also up in the air. The Dallas, Austin, and San Antonio Independent School Districts have sworn to carry on with their mask mandates, regardless of any court’s ruling. Attorney General Ken Paxton has responded to this in a Facebook post, stating in part that “NO GOVERNMENT IN TEXAS MAY IMPOSE A MASK MANDATE. Yet too many local officials continue to violate this law. I will sue every single local entity and local official who does. And if they continue to disobey, I will pursue additional legal sanctions.”

Adding to the legal complexities between state and local governments, President Biden has promised that he will use the US Department of Education’s civil rights enforcement authority to prevent the blockage of mask mandates. President Biden did not specifically mention Texas, but Education Secretary Miguel A. Cardona sent a letter to Governor Abbott stating that Texas’ spending of $18 Billion in Federal COVID-19 relief funds for schools was being monitored. Those funds had been tagged for “contact tracing, implementing indoor masking policies, or other policies aligned with CDC guidance.”

As COVID-19 heads into its second winter with us, the mask battles in Texas do not look to be cooling off, but rather heating up. It is unclear what implications these state and local government legal battles may mean for the future, but it is likely that there will be some lasting precedent created.

The attorneys in our Austin and Dallas offices are available to answer any questions you may have about the status of mask mandates in your county.  You may reach us info@gstexlaw.com.

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