Attorneys for the San Antonio Independent School District and Texas Attorney General’s Office sparred in court Wednesday over whether the state has the legal authority to sue the school district for issuing a staff vaccine mandate in defiance of Gov. Greg Abbott’s executive order.

State Attorney General Ken Paxton lacks the legal right to enforce Abbott’s Aug. 25 executive order that banned public entities, such as school districts, from mandating COVID-19 vaccines, said Steve Chiscano, the attorney representing SAISD. Paxton and Abbott have acknowledged in other court filings that neither has the right to enforce executive orders under the Texas Disaster Act.

That argument is disingenuous and a “waste of the court’s time,” said Ralph Molina, an attorney with the Attorney General’s Office, during the hearing to determine whether Paxton’s lawsuit against SAISD can move forward.

408th District Court Judge Angelica Jimenez said she would review each side’s arguments and return Thursday at 8:30 a.m. with a ruling.

Paxton sued SAISD and Superintendent Pedro Martinez for requiring all staff to be vaccinated against COVID-19. This was the second suit Paxton brought against the district, after the first was dismissed.

Martinez issued a staff vaccine mandate and mask mandate Aug. 16 for everyone inside school buildings. Three days later, Paxton sued Martinez and SAISD over both mandates, stating in the lawsuit that the superintendent and the district were “deliberately violating state law,” as a July executive order from Gov. Greg Abbott prohibits any entity that receives public funds from mandating COVID-19 vaccines that had received only emergency approval from the federal government.

But the federal Food and Drug Administration granted full approval for the Pfizer COVID-19 vaccine on Aug. 23, and the lawsuit was dropped. Two days later, Abbott issued a new executive order, banning governmental entities from requiring any COVID-19 vaccine, regardless of FDA approval status.

Molina, who spoke quickly and objected to Chiscano’s use of a PowerPoint presentation, said the attorney representing SAISD and Martinez was leading Jimenez down a “rabbit hole” meant to confuse the judge. He said the relevant question is not whether Paxton’s office can bring legal action against “rogue officials” like Martinez but whether the school district violated state law.

“There has to be a means to bring rogue officials back into compliance with law because that’s what’s happened here,” Molina said. “We have rogue public officials who have simply done the calculus, and they’ve just decided, ‘you know what, we’re just gonna break it. We’re just not going to follow the law.'”

Chiscano argued that state law does not empower Paxton to prosecute violations of Abbott’s executive order unless local officials request the attorney general step in. He said that power is defined by the state Legislature, and no local officials have sought Paxton’s counsel over SAISD’s vaccine mandate. Only three people could make that request: Bexar County Judge Nelson Wolff, San Antonio Mayor Ron Nirenberg, or the county’s emergency manager.

“Attorney General Ken Paxton is wrongfully attempting to enforce these orders when he has judicially admitted in other courts he has no enforcement authority,” Chiscano said. “There are 47,000 kids. There’s 7,000 employees, all of which want to be protected from this virus that kills people, and if we have a rogue attorney general that wants to march into Bexar County and start filing lawsuits on behalf of the state of Texas with no statutory right…then I’m sorry, but we are going to stop that. It is not a waste of time.”

Brooke Crum

Brooke Crum is the San Antonio Report's education reporter.