As the legal tussle over mask mandates continues, the state’s latest filing argues that it can automatically block the implementation of mask mandates via an appeal.
Texas Attorney General Ken Paxton asked the 4th Court of Appeals on Monday to strike down a ruling that granted San Antonio and Bexar County a temporary injunction against a gubernatorial executive order. That injunction gave them the ability to mandate masks in city- and county-owned facilities and in public schools.
According to the temporary injunction signed by Judge Antonia “Toni” Arteaga of the 57th Civil District Court on Monday, the city and county face “irreparable injury” if they cannot require masks to help curtail the spread of the coronavirus throughout the community. But in a Monday evening filing submitted to the 4th Court of Appeals, Paxton argues that his appeal bars the city and county from requiring masks.
The attorney general’s filing states that “all further proceedings,” including the temporary order that permits mask mandates, should be halted until the appeal is decided.
But the city and county do not agree with that interpretation, Deputy City Attorney Debbie Klein said.
Klein said the city disagrees that the governor qualifies for an automatic stay by appealing a temporary order. But attorneys representing San Antonio and Bexar County still filed a request Tuesday for an emergency order affirming the lower court’s temporary injunction, Klein said.
“This lawsuit was brought by the city challenging the governor’s authority,” Klein said. “Other than the governor’s order, which we believe is illegal, there is no order that says we may not issue a mandate. … So our position is that our mandates are still in place.”
Al Kauffman, a law professor at St. Mary’s University, agreed and said the city and county were acting in “good faith.”
“I think the city and county can in good faith say that the injunction is still in effect until the court of appeals rules on it,” he said.
Abbott is not the only governor who tried to ban masking requirements, sparking the federal government to take action. On Wednesday, President Joe Biden said he has asked the Department of Education to step in when states try to prevent masking in schools.
The 4th Court of Appeals has not yet moved on Paxton’s latest appeal or the city and county’s emergency request to formally maintain their mask mandates, but Kauffman predicted the court would take some kind of action quickly as school districts figure out how to proceed with mask requirements.
“It is a matter of some consternation,” he said.
Editor’s note: This story has been updated to show Debbie Klein is the deputy city attorney for San Antonio.