Judge Tonya Parker will decide whether to allow a local mask mandate to continue.
A Dallas County judge heard arguments Tuesday on whether to allow a local mask mandate to continue in spite of Texas Gov. Greg Abbott’s ban preventing local governments from enacting such public health measures. It’s the latest in a dramatic and fast-moving court battle over the issue in the state.
At Tuesday’s hearing, Judge Tonya Parker, of the 116th Civil District Court, heard evidence and testimony about the pandemic’s impact and the efficacy of mask-wearing to stop the spread of the COVID-19 delta variant, as well as legal arguments on the Texas Disaster Act.
Parker will decide whether to grant a temporary injunction against Abbott at the request of Dallas County Judge Clay Jenkins. A temporary injunction would stop Abbott’s order from being enforced in Dallas County and allow Jenkins to add enforcement measures to his mask order.
After Tuesday’s virtual hearing, Parker said there were moments that took her breath away, but it was unclear late that night when she would make a decision.
“It is not lost on anyone on this screen that this has been a stunning moment,” she said. “No doubt, the eyes of our state are upon us.”
State law allows various authorities, like the governor or a county judge, to respond to emergencies through the Texas Disaster Act, which includes measures for mitigating a crisis and managing recovery efforts.
Jenkins and Abbott disagree on the scope of their responsibilities in managing the COVID-19 pandemic.
Jenkins and his legal team say mask mandates are the best way to save lives and slow the pandemic while they wait for people to get vaccinated. They argued that Jenkins, the county’s chief administrative officer who has emergency management powers, has the legal authority to issue executive orders to mandate such rules.
“We need protection for citizens in Dallas County, we need protection for the economy of Dallas County,” Charla Aldous, one of Jenkins’ attorneys, said at the hearing Tuesday. “The bottom line: We are here because Judge Jenkins wants to do his job.”
Abbott and Texas Attorney General Ken Paxton say the governor’s executive order, GA-38 — which bans mask mandates, is legalbecause the Texas Disaster Act gives him the power to ban Jenkins and other local officials like school districts from requiring masks.
Benjamin Dower, a lawyer with the Texas Attorney General’s Office, said the state would produce no witnesses and that the testimony from Jenkins’ witnesses wasn’t relevant to the temporary injunction hearing.
“None of this is actually relevant to the matter the court has to decide,” Dower said. “This is really a question of law, not fact.”
Personal vs. public good
Multiple public health experts testified about the spread of the virus and the efficacy of mask-wearing. All emphasized how mandates work to slow the disease’s spread.
Dr. Benjamin Greenberg, a neurology professor at UT Southwestern with a specialty in auto-immune diseases, clarified the difference between decisions affecting personal health — or what individuals choose to do at any given time to protect themselves — and those that affect public health, which are meant to protect the entire community.
For example, Greenberg said smoking is banned indoors to protect others from second-hand smoke. Requiring masks is a similar public health decision that can help keep a population healthy.
“We are at risk due to the personal health decisions of others,” he said. “When everybody wears a mask, we all collectively benefit.”
Another public health expert who works at Harvard Medical School and Texas A&M College of Medicine, Dr. Edward Septimus, pointed to a study where two salon workers with COVID-19 symptoms came to work and saw 130 clients. The salon had mask requirements for both employees and customers, and the Centers for Disease Control and Prevention found that none of the clients they later contacted tested positive for the virus.
“If we all wore a mask, the people who don’t know they were infected are less likely to transmit that to somebody else,” Septimus testified. “We need to do everything we can to reduce transmission. … This is the right thing to do for all of us.”
When cross-examined by Dower, Abbott’s attorney, Septimus said that although voluntary compliance is an important first step, it cannot be the only tool governments use to protect public health.
“We have got to go to other measures because we have to protect the public health of our community,” Septimus testified. “It’s sad. I hate it. But I think it’s the important thing to do.”
Delta ‘changed the game’
Dr. Philip Huang, Dallas County’s Health and Human Services director, testified Tuesday about how cases and hospitalizations dropped when mask mandates were put in place, and how they rose as people began to stop wearing them.
He said that about 17% of tests in Dallas County are positive and pointed to a UT Southwestern prediction that the county could have more than 1,800 daily new cases by Sept. 6. The more contagious delta variant is the main driver of that spike, Huang said.
“It sort of changed the game,” Huang testified. “Persons who are fully vaccinated can still carry large loads of the delta variant.”
During cross-examination from Dower, he said that although cases have risen exponentially in recent weeks, deaths have remained low.
“But death isn’t the only outcome we’re looking at,” Huang testified.
Huang, like Greenberg, compared the efficacy of mask mandates to other public health behaviors, like smoking. He said that although people have known the dangers of smoking for years, it wasn’t until governments began issuing policies banning the habit that more people started to quit.
“The policies do actually change that behavior more than people making their choices,” Huang said.
Jenkins, who also testified, said his decision to issue a mask mandate was within his authority to protect public health. He said his decision was made in consultation with medical experts as well as business and community leaders. He testified that without drastic measures, the pandemic could continue to hurt the state’s economy.
“When it comes to a public health emergency, we need to listen to the experts,” Jenkins said. “And the experts are pretty uniform on this issue.”
Arguments center on harm, authority
Tuesday’s hearing was the second time Parker had heard arguments over the mask mandate, but it was the first time she heard evidence. An earlier restraining order hearing was to prove whether there would be imminent harm if Abbott’s ban were to be enforced. The temporary injunction hearing Tuesday was similarly to decide whether the decision should be more permanent.
“The harm is more than imminent — it is already here,” said Brent Walker, one of Jenkins’ attorneys. “In the face of one of the worst public health disasters in our county’s history, there is no credible argument against the use of a mask mandate to prevent extreme harm to citizens and the economy.”
After the restraining order was granted in early August, Jenkins issued an executive order mandating masks in county buildings, businesses and schools. Abbott and Paxton appealed to the Fifth Court of Appeals in Dallas, which also sided with Jenkins.
Abbott and Paxton then appealed the restraining order to the state Supreme Court, asking it to strike down Jenkins’ new rules. The Supreme Court agreed to block Parker’s restraining order, but it did not make a final ruling on the mask mandate ban.
In other words, both Abbott’s and Jenkins’ orders were allowed to remain in place until the court could decide on a temporary injunction.
The Supreme Court’s decision also made Jenkins unable to enforce his order, so he removed penalties for not wearing masks last week.
Jenkins’ attorneys told Parker at Tuesday’s hearing that a temporary injunction would allow him to add those enforcement measures back into his order.
“Judge Jenkins is having to rely on voluntary compliance,” said Doug Alexander, another one of Jenkins’ attorneys. “What we’ve heard today [is that] voluntary compliance is not as effective of a public health measure as mandatory compliance.”
A similar case in Bexar County ended in a win for San Antonio and county officials there last week when a judge approved a temporary injunction, allowing the mask mandate to remain in place there.
On Monday evening, Paxton asked the Supreme Court to suspend the Bexar County court’s injunction against Abbott’s order while the appeal continues.
“We all know the Texas Supreme Court will decide all these legal questions,” Dower said in the Dallas hearing Tuesday. “We’ll all be on the edge of our seat to find out.”