A temporary order that allows the City of San Antonio and Bexar County to require masks in their buildings will stay in place until a lawsuit challenging an executive order goes to trial in December, the 4th Court of Appeals ruled Wednesday.

In another blow to Gov. Greg Abbott’s executive order, U.S. District Judge Lee Yeakel ruled Wednesday in Austin that the ban on mask mandates in schools violates the Americans with Disabilities Act — freeing local officials to again create their own rules, according to The Texas Tribune.

After San Antonio and Bexar County sued Abbott over his July executive order that prohibited local governments from issuing mask mandates, a Bexar County district judge issued a temporary injunction in August. That temporary injunction gave the city and county the ability to require masks inside city- and county-owned facilities as well as in public schools that teach pre-kindergarten through 12th grade.

The 4th Court of Appeals had already upheld the temporary injunction after Texas Attorney General Ken Paxton appealed the trial court’s decision and argued that his appeal automatically blocked the city and county’s mask mandate. That decision made in August was temporary until the appellate court could take up the matter and issue a more final decision, which occurred Wednesday, said Larry Roberson, civil division chief of the Bexar County District Attorney’s office.

“This is the opinion on the temporary injunction,” he said. “The earlier issues were just procedural.”

The city and county argued that the governor’s executive order exceeded his scope of authority by blocking local governments from creating public health prevention measures. They also argued that by not having the ability to enforce their own public health measures, coronavirus transmission would be more widespread without masks and cause irreparable harm.

Their arguments were enough to validate the need for a temporary injunction, three judges on the 4th Court of Appeals found.

“We conclude that the City and County have pled sufficient facts to establish that their injuries are ‘likely to be redressed by the requested relief,’” Chief Justice Rebeca C. Martinez wrote in the appellate court’s opinion issued Wednesday. 

Though Paxton also argued that San Antonio and Bexar County cannot sue Abbott over his July executive order because Abbott does not enforce that order, the appellate court disagreed.

Paxton took the previous ruling from the 4th Court of Appeals to the Texas Supreme Court in August; the state Supreme Court stayed that ruling while the appellate court looked over Paxton’s appeal. Even though Paxton can take this 4th Court of Appeals decision to the Texas Supreme Court again, Roberson pointed out that the upcoming trial date over the issue might make that less of a priority. A trial on the lawsuit is scheduled for Dec. 13.

City Attorney Andy Segovia said that he was pleased to see the appellate court’s decision.

“However, we do not believe this will end the litigation,” he said in a statement. “We fully expect the state to appeal the ruling. In meantime, given the current risk level in fighting the pandemic, we will continue with our current practice of recommending masks inside city facilities.“

The city and county currently do not require masks in their facilities but encourage people to wear them. Amid the battle over the mask mandate, Bexar County’s risk level for coronavirus transmission has continued to drop, with a positivity rate sitting at 1.5% during the week of Oct. 30. Hospitalization rates are down while vaccination rates are up, and Bexar County children ages 5 to 11 started getting the Pfizer vaccine on Nov. 4.

The attorney general’s office did not respond to a request for comment Wednesday.

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Jackie Wang

Jackie Wang covered local government for the San Antonio Report.