This story has been updated.

A state district judge granted San Antonio and Bexar County a temporary restraining order on Tuesday that allows them to require masks in city and county-owned facilities and school districts.

San Antonio and Bexar County sued Gov. Greg Abbott on Tuesday over his July executive order that prohibited them from issuing mask mandates.

Judge Antonia “Toni” Arteaga of the 57th Civil District Court ruled Tuesday that the city and county could mandate masks on a temporary basis.

“I don’t do this lightly,” Arteaga said. “And I don’t mind letting you guys know that the affidavit of [Dr. Junda Woo], our local public health authority, weighed heavily in my decision, as does the fact that the school year for many of our children, including those under 12, has begun. And those under 12 of course, as you know, don’t have access to the vaccine and they’re already in school. So I do find that this is emergent, I do find that it is necessary.”

A hearing to extend the temporary restraining order will be held Monday morning.

Abbott’s office released a statement after the ruling: “Governor Abbott’s resolve to protect the rights and freedoms of all Texans has not wavered. There have been dozens of legal challenges to the Governor’s executive orders—all of which have been upheld in the end. We expect a similar outcome when the San Antonio trial court’s decision is reviewed by the appellate courts.”

Mayor Ron Nirenberg said that the lawsuit was to challenge Abbott’s authority to suspend local emergency orders during the pandemic. Find a copy of the lawsuit here.

“Ironically, the governor is taking a state law meant to facilitate local action during an emergency and using it to prohibit local response to the emergency that he himself declared,” he said in a news release.

A temporary restraining order is necessary as San Antonio and Bexar County face “imminent irreparable harm,” from transmission of the coronavirus, plaintiffs wrote.

This is not the first lawsuit over Abbott’s order; Dallas County sued on Monday night. Dallas Independent School District and Austin Independent School District also announced Monday that they would be requiring masks in schools despite Abbott’s executive order.

With the temporary restraining order in place, the San Antonio Metropolitan Health District intends to immediately require masks in public schools and unvaccinated students to quarantine if they come in “close contact” with someone that tested positive for COVID-19.

As schools open for the new year, local officials and many parents have expressed concern over the inability to require students to wear masks in the classroom. Children under the age of 12 are still ineligible for a vaccine.

The San Antonio and Bexar County Health Authority has also determined that requiring masks in public schools is necessary to prevent further spread of COVID-19 during the current increase in cases due to the spread of the highly contagious delta variant,” the lawsuit stated. “With students in San Antonio-area schools returning to classrooms in coming days, the Health Authority needs to put in place an appropriate masking directive to ensure the safety of the community.”

The city and county argued in its filing that Abbott exceeded his authority, as Texas law “gives the governor authority to suspend statutes and regulations governing state officials and agencies, but not the statutes giving local governments the authority to manage public health within their own jurisdictions,” city and county representatives wrote in the lawsuit filed Tuesday. Bexar County Judge Nelson Wolff reiterated that point during a county commissioners meeting Tuesday morning. 

“We believe that he has unconstitutionally stepped beyond his power as governor, that the only body that has the right to change our respective authority at the local level is the Texas legislature and they have not done that,” Wolff said. 

“We are in great jeopardy in this community, particularly with schools with young children coming back. Just in the last month or so, nationwide, the number of children going into the hospital has doubled, so it’s affecting young people today as well as older people.”

University Health president and CEO George Hernandez also pointed out to commissioners Tuesday that in the hospital system, the average age of the unvaccinated COVID-19 patient is 46, while among vaccinated patients, it’s 61. Almost nine in ten patients in local hospitals are unvaccinated.

“I just wanted to put an exclamation point on that,” he said.

Jackie Wang

Jackie Wang is the local government reporter at the San Antonio Report.