Though the City of San Antonio and Bexar County can currently mandate masks inside their facilities and in schools, that authority will likely be cut short by the Texas Supreme Court, experts said.
On Tuesday, a Bexar County district judge granted San Antonio and Bexar County a temporary restraining order that allowed them to issue mask mandates for city- and county-owned facilities as well as in schools. The city and county both began requiring masks in their facilities on Wednesday, while the San Antonio Metropolitan Health District medical director issued a health directive ordering everyone to mask up while in public schools.
Political science and law experts agree that the local governments’ mask mandates have an unfavorable path forward, ending with the Texas Supreme Court; all nine justices are Republicans and have shown little appetite for ruling against the governor.
A statement from the governor’s office Tuesday reflected that confidence: “There have been dozens of legal challenges to the Governor’s executive orders — all of which have been upheld in the end,” stated Press Secretary Renae Eze. “We expect a similar outcome when the San Antonio trial court’s decision is reviewed by the appellate courts.”
For example, on Tuesday, the Texas Supreme Court overturned a Travis County district judge’s temporary restraining order to allow for the arrest of quorum-breaking Texas House Democrats. The day before, the court denied state Democrats’ request to overturn Abbott’s veto of legislative funding.
As the city and county prepare to fight for an extension of the temporary restraining order, the delta variant continues to rip through the community, overloading local hospitals as coronavirus case loads rise.
The area positivity rate has nearly doubled since the beginning of July, to more than 21% last week. As of Wednesday, 1,284 people were hospitalized for COVID-19; at the beginning of July, that number was below 200. Almost 90 percent of those hospitalized are unvaccinated, local officials said. Only 8% of staffed hospital beds are still available. Meanwhile, more Texas children are currently hospitalized for COVID-19 than ever before.
Despite the crisis, St. Mary’s University School of Law professor Michael Ariens believes the lawsuit’s ultimate success is a “long shot.”
Attorneys for the city and county relied on a dissenting opinion from a judge on the 8th Court of Appeals in a mask mandate case involving El Paso County, Ariens said: that Texas law does not allow the governor to suspend laws giving local governments the ability to respond to public health crises as they see fit.
“A decision by a dissenting [opinion] of the court, while sometimes correct,” Ariens said, “is not as helpful as a decision from a majority of the court.”
But getting the temporary restraining order granted in the first place puts San Antonio and Bexar County in a stronger position, he said, as it allowed the city to get a mask mandate in place in public schools and public facilities. That means “the ball is in the state government’s court,” he said, which will have to make a move “if it wants to change the status quo before Monday.”
A hearing is scheduled Monday morning; lawyers representing San Antonio, Bexar County, will ask to extend the temporary restraining order into a temporary injunction. If granted, the mask mandate would remain in place until trial or until the decision was appealed.
San Antonio and Bexar County are not the only governmental entities suing over the governor’s mask mandate ban. Harris County declared its intent to sue on Tuesday, while Fort Bend County secured its own TRO Wednesday night and will require masks in schools and county facilities.
Dallas County Judge Clay Jenkins issued a mask mandate for Dallas-area schools, child care facilities, and businesses on Wednesday after a district judge in Dallas County granted a temporary restraining order on Tuesday. That prompted Gov. Greg Abbott and Attorney General Ken Paxton to ask the 5th Court of Appeals to block Jenkins’ emergency order.
In a news release Wednesday, Abbott argued that his July executive order prohibiting governmental entities from issuing their own mask mandates still stands.
“The path forward relies on personal responsibility — not government mandates,” Abbott said in a statement. “The State of Texas will continue to vigorously fight the temporary restraining order to protect the rights and freedoms of all Texans.”
As Abbott urged Texans to take personal responsibility for their health to halt the spread of the coronavirus, he also asked for out-of-state staffing help to aid with overflowing hospitals and requested all elective surgeries be postponed.
Abbott’s swift action to get a temporary restraining order lifted was expected, as the governor would not want to be seen as weak while school districts and local governments defy his executive order, said Jon Taylor, professor of political science and chair of the department of political science and geography at the University of Texas at San Antonio. But no matter the ultimate outcome, Taylor said, Abbott’s political standing will likely remain unaffected.
“A week is a lifetime in politics and this can radically change, but if the governor wasn’t hurt by what happened with the electric grid and the winter storm in February — and for the most part, he seems to have not been hurt by it — it’s probably the same kind of calculations here when it comes to the masking order and mandatory versus voluntary vaccinations,” Taylor said.
Henry Flores, professor emeritus of political science at St. Mary’s University, had a slightly different take. He believes the collective force of school districts, county judges, and mayors could push the weather vane in the opposite direction.
“He’s playing a tough game with everybody, but if enough people stand up to him and cause enough of an uproar, he’ll back down, I think,” Flores said. “And that might be the safe investment for him to make. … It’ll become too much of a political annoyance for him, and it could end up costing him dearly. He’s going to have to weigh all that.”
If the case moves quickly, and the Texas Supreme Court vacates the temporary restraining order, “chaos” could ensue, Taylor said. Not only would the back-and-forth cause further confusion among parents of schoolchildren, but leaders of Bexar, Dallas, and Harris counties could simply refuse to stop requiring masks.
“This is not some sort of radical rebellion,” he said. “You’re talking about school districts that are following CDC guidelines on masking. The other thing is this: because there’s enough prosecutorial discretion that’s involved, it takes time — obviously justice takes time — and any sort of delay in court action could be months from now, long after, hopefully, the crisis and the spike in delta has passed. It could all be a moot point by then anyway.”
Even if the San Antonio and Bexar County mask mandates are ultimately blocked by the Texas Supreme Court, City Attorney Andy Segovia said Tuesday that the effort to challenge the governor’s executive order was not fruitless.
“Every day that we can initiate and implement a mitigation step, like what we just did in terms of masks, every day that we can do that is a meaningful thing in terms of attacking the pandemic,” Segovia said.
This story has been updated to include a missing first reference and title for Professor Michael Ariens.