By Charles Scudder and Talia Richman
A judge has ruled that Gov. Greg Abbott’s executive order on mask mandates is “not [a] necessary action to combat the pandemic”, and agreed to a temporary restraining order that will allow Dallas County Judge Clay Jenkins to require face coverings.
The restraining order comes as the start of classes coincides with a spike in delta variant cases across Texas and the rest of the country. Along with those growing concerns is an escalating conflict over mask-wearing requirements, one of the most powerful tools public health experts say can slow the virus’s spread.
“The citizens of Dallas County have and will continue to be damaged and injured by Governor Abbott’s conduct,” the order reads. “Judge Jenkins cannot be precluded from implementing the mitigation strategies he believes are sound, reliable, and backed by scientific evidence.”
Abbott repeatedly has said he expects Texans to take personal responsibility for their actions. He said he encourages mask wearing, but issued an executive order last month stressing that it’s not the government’s place to require them.
Others, including Jenkins, say the skyrocketing case counts call for local mandates to protect vulnerable populations like children under 12, who are ineligible for the vaccine.
Judge Tonya Parker’s court ruling came after parents of 12 Dallas County children asked her to allow local schools to mandate masks and protect those too young to get vaccinated against COVID-19.
They all say Republican Gov. Greg Abbott’s executive order preventing local governments from taking such steps is an overreach of his authority.
Many have pushed back against Abbott’s order. Dallas ISD has defied the governor by requiring masks. A judge in Bexar County ruled in favor of city and county officials Tuesday, allowing them to mandate masks in San Antonio schools and local government owned buildings.
Still, Abbott and Texas Attorney General Ken Paxton have dug in, claiming the state’s authority to ban such measures is critical to aiding the recovery from a public health emergency that has not ended.
In the 116th civil district court Tuesday, Judge Parker heard arguments from Jenkins’ and Abbott’s attorneys over a similar request to stop the governor’s ban on mask mandates.
The initial dispute was sparked by Jenkins requiring masks at Dallas County Commissioners Court meeting last week. Commissioner J.J. Koch refused and was removed by a bailiff. He sued Jenkins, who in turn filed for a temporary restraining order against Abbott to stop enforcement of his executive order.
At issue were specific lines in the Texas Disaster Act, which grants authority to the governor and local executives like Jenkins to respond in times of disaster. The question: whether the governor could ban the local authority from taking action, or if the local government could go above and beyond the state’s authority.
Jenkins’ attorneys said the crisis in Dallas County required rapid action at the county level. They cited a part of state law that says the governor may make recommendations to mitigate disasters, but argued that it didn’t say specifically that he could interfere with a county’s actions.
“The situation is dire and getting more dire every day,” said Brent Walker, one of Jenkins’ attorneys. “People will die unless we do more, but Clay Jenkins is being hamstrung.”
Todd Dickerson, one of Abbott’s attorneys, argued that although the disaster act does allow county judges to take action in emergencies, they cannot overstep what the governor mandates. Dickerson said the state ruling should take precedence.
The case will likely not end in Parker’s courtroom. The legal fight over mask mandates could be appealed to the Texas Supreme Court.
Political showdown
At the center of the political and legal debate are parents like the ones who filed a counterclaim on Monday, saying they face a heartbreaking decision between their child’s education and their health.
All of the children in the claim are medically fragile or have another condition that make in-person school critical. The parents say the governor’s order is unconstitutional, and request that a judge allow school districts to require masks to protect their children from the delta variant.
“Texas schools are preparing to open while stripped of the authority to ensure that broadly recommended public health guidelines are adhered to solely because of the Governor’s unlawful order,” according to the claim.
The claim lists the children — all students in Dallas ISD, Coppell ISD or Richardson ISD — as the counter-plaintiffs with a vested interest in the suit, represented by their parents. It also names Paxton as a counter-defendant.
Paxton filed his own application for injunctive relief in the case on Tuesday on behalf of the state. It claims that Abbott’s authority supersedes Jenkins’ and that the executive order should stand.
Paxton and Abbott’s responses mark a dramatic shift from early on in the pandemic when local authorities, including school districts, had more control over how to manage the coronavirus crisis.
“The Texas Legislature made the Governor — not some patchwork of county judges and city mayors — the leader of the State’s response to a statewide emergency,” Paxton’s application claims. “Local officials like Defendant Jenkins must recognize the fact that they are not above the law.”
The parents’ attorney, Jenna Royal, said Tuesday her clients were “terrified” at having to choose between sending their children to a school environment they believe is unsafe, or keeping them at home and preventing them from learning and growing.
“The hands of school districts across the state have been tied,” Royal said. “We believe the governor has exceeded his rights and his duties.”
Royal said the governor’s order interferes with local school districts’ ability to create a safe school environment, and that the Texas Disaster Act does not allow Abbott to limit school actions.
Parents’ decision ‘agonizing’
The parents wrote in sworn statements that they are both desperate to send their kids back to school to make up for lost learning time, but also worried that adults won’t take the necessary safety precautions. And because most of their kids aren’t yet old enough to receive the vaccine, the decision has become “agonizing.”
“It’s our job as parents to protect our children, but we also need them to attend school and learn,” wrote Laura McFerrin-Hogan. “We need to rely on masks and social distancing to protect our children until there is an effective vaccine available for them. Their lives and the lives of their loved ones literally depend on it.”
The delta variant, doctors say, is making younger people sicker than previous strains of COVID-19. Local children’s hospitals have reported a spike in cases among children who are unable to get the vaccine. In North Texas, those pediatric hospitals are at 94% capacity, according to the Dallas-Fort Worth Hospital Council.
One mother, whose 7-year-old daughter has autism, wrote that the past 18 months have felt like “a slow-moving apocalypse.” The child’s grandmother died last year, likely of COVID-19, and her grandfather has dementia and lives with them.
“Sending my daughter to school without requiring all students and teachers to wear masks and without adequate safety protocols will endanger her health, development, and well-being,” Sasha Alvarado wrote in an affidavit.
Another plaintiff, whose daughter has dyslexia, wrote that her child is best served by getting in-person specialized services. Schools are required to provide for students with disabilities.
“It is not safe for my children to return to school without all students and teachers being required to wear masks, so my daughter will not be able to receive full dyslexia support without endangering her health,” Katherine Thacker wrote.
Another mother wrote that because her child has serious medical problems — and a neurologist recently said a COVID diagnosis would “lead to an immediate hospital stay” — she felt she was being “forced to choose between [her son’s] health and his education.”
