The Texas Supreme Court on Thursday temporarily blocked a mask mandate issued by San Antonio and Bexar County for their public schools — a blow to efforts by some cities, counties and school districts to defy Republican Gov. Greg Abbott’s ban on such measures.
The ruling came in a lawsuit by San Antonio and Bexar County, one of at least nine that have been filed by cities, counties and school districts against Abbott over his ban on mask mandates. Amid a surge in COVID-19 cases that have overwhelmed many hospitals across the state, at least 11 counties and cities and 63 school districts or systems in Texas have imposed mask mandates to slow the spread of COVID-19.
Abbott has argued that a law known as the Texas Disaster Act gives him broad power in deciding how best to respond to emergency situations, including whether to ban mask mandates during a pandemic. In an emergency order issued last month, Abbott reaffirmed his ban on mask mandates by any state, county or local government entity.
The counties, cities and school districts say Abbott has exceeded his authority. Dallas and Harris counties, two of the state’s most populous counties, are among those that have imposed mask mandates.
Last week, a judge granted Bexar County and San Antonio a temporary injunction that put Abbott’s ban on hold pending trial in that lawsuit. The Texas Attorney General’s Office asked the state high court to stay the injunction. The Texas Supreme Court had previously stayed temporary restraining orders issued in favor of Bexar County, San Antonio and Dallas County.
In its order Thursday, the court said oversight of decisions on mask mandates has been up to the governor and “that status quo” should remain in place while the courts examine the issue.
“This case, and others like it, are not about whether people should wear masks or whether the government should make them do it. Rather, these cases ask courts to determine which government officials have the legal authority to decide what the government’s position on such questions will be,” the court said.
The court has not yet made a final determination on the legal issues surrounding mask mandates.
“The Texas Supreme Court has sided with the law, and the decision to enforce mask mandates lies with the governor’s legislatively-granted authority. Mask mandates across our state are illegal,” Texas Attorney General Ken Paxton said in a statement.
In a statement on Facebook, San Antonio Mayor Ron Nirenberg said, “We’re not going to let an ongoing court battle distract us from the real fight against COVID-19. Get the vax. Wear a mask.”
It’s likely that other cities, counties and school districts that have won temporary restraining orders or temporary injunctions allowing them to have mask mandates will also be subject in the comings days to similar rulings that also put their mandates on hold, said Dale Carpenter, a law professor with the Southern Methodist University School of Law in Dallas.
“The writing is on the wall” and Abbott, a Republican like all the justices on the Texas Supreme Court, will probably win in the end, Carpenter said.
One issue that might complicate the mask mandate debate is an admission by lawyers for the Texas Attorney General’s Office that neither Abbott’s office nor the attorney general has the authority to enforce the governor’s ban or the $1,000 fine that comes with violations. Such enforcement would be up to local district attorneys.
“Every day that passes that we don’t have a definitive ruling from the Texas Supreme Court is a good day for these local officials, school officials who want to impose mask mandates,” Carpenter said. “It seems to me they want to buy time during the worst surge of this delta variant. Every day they can buy with a mask mandate in place, is a small victory as far as they’re concerned in the pandemic. They may not win in the end, but at least they will have done what they could for the time being.”