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Dallas County Judge Clay Jenkins asks court to block Texas Gov. Greg Abbott’s ban on mask mandates

Jenkins says Republican governor’s ban ‘could not happen at a worse time’ as schools reopen and the COVID-19 delta variant spreads rapidly.

By Charles Scudder

Governor Greg Abbott
Governor Greg Abbott, photographed in Dallas Sept. 24, 2020, has issued an executive order banning mask mandates from governments and schools in the state. (Juan Figueroa/ The Dallas Morning News)(Juan Figueroa / Staff photographer)

This story has been updated throughout.

Dallas County Judge Clay Jenkins on Monday asked a court to block Texas Gov. Greg Abbott’s ban on mask mandates, arguing that the Republican governor’s executive order violates state law.

The counterclaim is in response to a suit between Jenkins, a Democrat, and Dallas County Commissioner J.J. Koch, a Republican, over a mask mandate at Commissioners Court meetings. It names Abbott as a counter-defendant, and requests that a judge file an order to stop enforcement of the governor’s July executive orders that prevent local governments from enacting mask mandates.

It also asks that Jenkins be allowed to take measures to manage the pandemic, including mandating masks. Jenkins’ request for declaratory judgment and a temporary restraining order come as COVID-19 delta cases soar nationally and local hospital emergency departments become overrun with patients.

“Within a matter of days, schools will be starting back up, and young children, who are increasingly at risk to the Delta Variant and who are ineligible for any of the vaccines, will be indoors,” Jenkins’ filing claims. “This is a recipe for exploding community transmission of the Delta Variant as it races through the schools and children take it home to their families.”

Abbott’s office did not immediately respond to questions about Jenkins’ claim.

The document, obtained by The Dallas Morning News, was filed electronically late Monday but had not been stamped as filed by the district clerk’s office.

“Governor Abbott’s overreach could not happen at a worse time,” according to Jenkins’ claim. “Texas lags behind most states in vaccinations and has had among the highest total number of cases of coronavirus transmission. The pandemic is an imminent threat to public safety.”

Abbott issued his executive order after the Centers for Disease Control and Prevention recommended mask-wearing for both vaccinated and unvaccinated people indoors. Those who defy his mandate could face a fine of up to $1,000.

The governor’s executive order also bans schools from requiring masks, but many districts are fighting back.

On Monday, Dallas ISD said it would require masks as part of another effort to challenge Abbott’s ban, and the state’s largest school district, Houston ISD, said it would consider a similar measure.

In a release announcing 796 new cases and three deaths Monday, Jenkins praised the decision from Dallas ISD.

“I think what you’ll see, and I hope what you’ll see, is more local leaders in government, schools, hospitals and businesses standing up to follow the science and protect public health,” Jenkins said. “The enemy is not each other. The enemy is the virus, and this is about saving lives.”

A Dallas County judge previously rejected Koch’s request for a temporary restraining order against Jenkins’ mask mandate in the courtroom, saying there was no harm done by requiring the commissioner to wear a face covering at a meeting last week. Jenkins makes clear in his counterclaim that he sees Abbott’s measure as causing serious damage.

“These injuries are irreparable and there is no adequate remedy at law because nothing a court can do at a later date can change the infections, spread, illness and death that will in all certainty occur at greater numbers,” according to the court filing. “The harm is ongoing and it is serious. Lives are at stake.”

Abbott on Monday also ordered out-of-state help to provide extra staffing for health care facilities as they grapple with the rise in COVID cases. He’s also asked the Texas Hospital Association to tell hospitals to delay elective surgeries to make room for a surge in COVID patients. Additionally, the governor is calling for more COVID antibody infusion centers to open across the state to treat patients who do not need to be hospitalized and to increase vaccine availability.

Jenkins said Monday that only 14 ICU beds are left countywide. The last time Dallas ICUs were this full was Feb. 16, according to the county.

“Without one of the few tools we have to fight the deadly virus, Judge Jenkins is being prevented from fulfilling his legislatively delegated duty to address this pandemic disaster which is getting worse,” according to his claim.

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