This article has been updated.
Bexar County District Judge Antonia “Toni” Arteaga of the 57th Civil Court on Monday allowed San Antonio and Bexar County to continue to mandate masks in public buildings and public schools.
The latest ruling in the legal battle over COVID-19 prevention measures came less than 24 hours after the Texas Supreme Court temporarily blocked the local mask mandate. The city and county sued Gov. Greg Abbott last Tuesday over his July executive order that prohibited local governments from requiring masks. They then received a temporary restraining order that allowed them to require masks inside city- and county-owned facilities as well as in public schools that teach pre-kindergarten through 12th grade.
Arteaga said that like her decision to grant a temporary restraining order last week, the choice to grant a temporary injunction was not made lightly. She acknowledged the testimony of Bexar County resident Michelle Means, who told the court Monday that she did not want to send her youngest child to school with a face mask and was disappointed by the sudden mask mandate issued last week.
“I just wanted to apologize to all those parents, school administrators, the superheroes that we call teachers, for what someone called the equivalent to a legal tug-of-war,” Arteaga said. “Unfortunately, … our children are right in the middle.”
Arteaga’s ruling on Monday is only a temporary extension; the mask mandate will not be permanently in place until the case goes to trial. If the injunction is appealed, the 4th Court of Appeals and Texas Supreme Court would also have to rule in the city and county’s favor.
Though San Antonio and Bexar County may have been briefly victorious at the appellate court, which on Friday denied Abbott’s request to block the temporary local mask mandate, the Texas Supreme Court likely would rule in favor of maintaining Abbott’s executive order and invalidating any local mask mandates.
City Attorney Andy Segovia said a trial to decide a permanent injunction has tentatively been set for December. He, along with other city and county officials, said they expect Abbott to appeal the temporary injunction at the 4th Court of Appeals, as he did with the temporary restraining order.
“We do realize that the battle is not over,” Mayor Ron Nirenberg said at a Monday news conference. “We expect the state to appeal the judge’s decision, and we will be there to defend our schoolchildren every step of the way.”
Arteaga heard from five witnesses during a hearing Monday, with four testifying on behalf of San Antonio and Bexar County and one for the state. During the hearing, local officials testified about rising coronavirus cases and hospitalizations and said the need to require masks in schools was urgent as more of them opened their doors to students.
Children under the age of 12 are still ineligible for the coronavirus vaccine, making them more vulnerable, said Dr. Junda Woo, who testified in her capacity as the public health authority for San Antonio and Bexar County. She also serves as the medical director for the San Antonio Metropolitan Health District. Though children generally have better health outcomes if they contract the virus, they can still bring it home to older, more vulnerable adults.
“People are out and about more and we have a large number of people who are unvaccinated,” she said. “And the delta variant is more contagious than the earlier version of COVID, where every person who had COVID will infect one or two people. With the delta variant, every person infects eight to nine people.”
Woo also cited rising hospitalizations of COVID-19 patients in the area. Those increases are now accompanied by smaller staff numbers at area hospitals compared to previous surges, Woo said.
“As a physician, I really worry we’re going to break our health care system,” Woo said. “The level of burnout, of anger that I see among health care providers who I have known for years, is at levels I have never seen before. We can’t keep asking people to do this over and over again.”
Assistant Attorney General Kimberly Gdula, who represented the state, argued that the Texas Disaster Act of 1975 grants the governor broad powers during a crisis to and “the ability to issue executive orders that carry the force and effect of law, to control movements of persons and occupancy of premises in a disaster area, and, when necessary, to suspend certain statutes.” The executive order barring local governments from mandating masks falls well within his authority, Gdula said.
William Christian, an attorney from Austin law firm Graves Dougherty Hearon & Moody who is representing the city of San Antonio, argued that the Texas Disaster Act also gives county judges and mayors the same authority over people’s movement in disasters within their jurisdictions. If Abbott was able to previously impose a statewide mask mandate with that statute, it also gives county judges and mayors that ability, Christian said, and Abbott’s executive order “explicitly suspends the statute,” he said.
Gdula maintained that masks can still be worn when people choose to do so. Even though the governor’s executive order does not allow local governments to require masks, he still has been encouraging Texans to wear masks and follow other safety measures, she said.
Gdula also stressed that because the Texas Supreme Court gave Abbott temporary relief from the San Antonio and Bexar County restraining order, the current status quo is prohibiting mask mandates once more. A temporary injunction should maintain the status quo while a case is waiting to go to trial, Gdula said.
Shortly after Arteaga’s decision, Bexar County Judge Nelson Wolff praised the ruling in a tweet.
“Judge Toni Arteaga understands the need to protect our children who cannot get the vaccine,” he said. “With a high of over 1,300 in our hospitals today, it is crucial that we protect our most vulnerable.”
Bexar County District Attorney Joe Gonzales said the judge “made a tremendously hard decision.”
“Whether we agree or disagree, today reminded everyone that the public can have confidence in its legal system and in the members who practice in it and that in the end, the rule of law will prevail over politics or any other consideration,” he said in a prepared statement. “As we work together to try and alleviate the effects of the delta variant in our community, I will continue to advocate for the health and safety or our local community.”
Arteaga acknowledged the difficulty of the case but also pointed to the current public health conditions in the San Antonio area.
“I know this is important not just locally, but to millions of people within our state and nationwide,” she said. “And my thoughts continue to be with those children in our schools, who don’t have access to the vaccine, but must attend school coupled with the dire situation right here in Bexar County.”