I find a bit of a pattern in this story and wonder if there may be something to it.
School districts, local officials and hospitals are pushing back on Gov. Greg Abbott’s executive order barring mask and vaccine mandates, setting the stage for legal showdowns over coronavirus safety measures just as cases are surging in Texas and hospitals are filling up.
Houston ISD signaled its intention to require face coverings when students return this month. The University of Texas Medical Branch in Galveston requested an exemption to mandate COVID-19 vaccinations for staff, but was denied. Dallas County Judge Clay Jenkins required face masks at a meeting this week; he’s now being sued.
[…]
Dr. Mark McClellan, who advised Abbott earlier in the pandemic, said local officials need flexibility based on conditions in their area.
“There is evidence that wearing a mask, especially at times of high community transmission which Texas has right now, does help significantly,” said McClellan, former commissioner of the U.S. Food and Drug Administration and director of the Duke-Margolis Center for Health Policy at Duke University.
“I appreciate that wearing a mask is inconvenient, I would rather not do it,” he said. “But if there are high rates of transmission in the community I think it’s important for local authorities to have the ability to make a decision that works best for their students and their population.”
Early last year, Abbott said he would rely on data and doctors in making decisions to promote public health. McClellan was one of Abbott’s four original medical advisors, but is no longer playing that role.
Abbott has remained in regular contact with one of the original advisors, Department of State Health Services head Dr. John Hellerstedt, since the beginning of the pandemic, according to spokeswoman Renae Eze. Hellerstedt did not answer questions about whether he agreed with Abbott’s executive order.
[…]
It remains to be seen whether other school districts follow suit in defying Abbott’s order. El Paso officials wrote to Abbott this week urging him to give school districts a choice in whether to require masks or not. Dallas ISD did not respond to a request for comment.
Violations of Abbott’s order can result in a fine of up to $1,000. Georgina Pérez, a State Board of Education member from El Paso, volunteered to raise money to help pay fines for school districts that defy the governor’s order by mandating masks.
“Knowingly not protecting children from harm goes against everything that teachers stand for,” she said.
Abbott’s office did not immediately respond to questions about whether any fines have been levied to date. Houston Mayor Sylvester Turner has faced no pushback since he told the city’s roughly 20,000 workers on Monday to resume wearing masks at work, according to a spokesperson.
[…]
Some institutions that sought exemptions from Abbott’s order have been rejected. The latest version blocks a wide swath of government entities, including cities, counties, universities and publicly funded hospitals, from requiring staff get the vaccine while full FDA approval is pending.
The University of Texas Medical Branch would want to require vaccination of its frontline clinical staff and requested an exemption, but was told to abide by the governor’s order, according to Dr. Janak A. Patel, director of the Department of Infection Control & Healthcare Epidemiology.
Dr. John Zerwas, the UT system’s vice chancellor for health affairs, raised the exemption request with Abbott recently, who was not willing to change his position, he said.
Parkland Hospital, a publicly funded organization that falls under Abbott’s order, plans to require its employees get vaccinated as soon as the FDA fully approves the shot. In anticipation, Parkland alerted staff this week that the first dose will be required by Sept. 24 and the second — or single Johnson & Johnson dose — by Oct. 15. Approximately 71% of staff are already vaccinated against COVID-19.
“These steps are necessary to protect Parkland’s complex patient population who, due to their socio-economic status, often have no choice in where they receive care,” said Michael Malaise, senior vice president of communications and external relations for Parkland, in an email.
The main thing I notice is that for the most part, the entities that have just gone ahead and done the thing they wanted to do that was in violation of Abbott’s executive orders have – so far – not received any pushback for doing so. The exception is Dallas County Commissioners Court, which got a stern letter from Ken Paxton after barring one of the commissioners from entering without a mask, but even that letter didn’t spell out any particular actions Paxton would take. The difference between UT Medical Branch hospital and Parkland Hospital is particularly instructive. Moreover, even if a cease-and-desist letter or some other legal action comes down on Parkland, by the time the dust settles they probably will have gotten some number of previously unvaxxed employees to get their shots, and that’s all that matters.
So, my advice to El Paso ISD and austin ISD, which may be considering its own mask mandate, is to just do it. Mask mandates are something that a lot of parents want, especially parents of medically fragile children or who have immunocompromised family members at home, and especially given the limited remote learning opportunities that exist now. The thousand-dollar fine, which doesn’t appear to have a clear mechanism for enforcement, isn’t very much even if it’s a thousand dollars a day, and that may be challenged in court on the grounds that it is discriminatory against students with health issues. But really, it’s the right thing to do, and maybe – just maybe – Abbott has gotten out a bit over his skis here. For sure, asking is going to get you nowhere. Take action and take it now, if all else fails it should be something that can be taken back. Do what you must to protect the kids.
UPDATE: Someone agrees with me:
.
Schools have an unspoken commitment to protect the children in their care. I can’t imagine the state of Texas suing school districts that require masks to keep kids safe. That would be cynical and tragic.— Lina Hidalgo (@linaHidalgoTX) 12:41 PM – 8 August 2021
If they really cared about Covid, they wouldn’t hyper focus on Abbott. They would point out that having an unregulated border with people pouring across, some infected, is a risk. They would put out that the kids in cages are spreading it. But they just focus on Abbott, because it isn’t about keeping us safe. It’s about continuing the Big Lie. The Big Lie was how Biden got elected, and since it worked, they don’t want anything to stop it now. If you had just woken from a 6 month coma, and you saw a CNN video, you would think that Trump is still president.
You’re a loony.
Thanks for proving my point. You have no articulate response. You have been brainwashed.
BRAINSTORMING
Last year, it was argued that Governor Abbott wasn’t a proper defendant in legal challenges to COVID-19 orders because he doesn’t get to enforce them. So who gets to enforce this one?
The local DA perhaps, or the county attorney?
What if counties were to prosecute themselves (or cities, or school districts in their geographic jurisdiction) and request the imposition of the $1,000 penalty, or alternatively, for declaratory judgment and/or an injunction? Wouldn’t that give the lucky defendants standing to make their case in court and argue that Abbott’s order is ultra vires, negates the express purpose of the Texas Disaster Act (coping with disaster), is unconstitutional, or whatever else they can come up with by way of legal argument? And if the legal arguments don’t work, how about a mutually acceptable consent judgment with a suitably deferred compliance deadline?
Why wait for Ken Paxton to file an injunction suit in which he controls the offense, and any settlement, as plaintiff? If he attempts to intervene in a pending case in the name of the State, that won’t necessarily succeed if the constitutionality of the Texas Disaster Act is not itself assailed by the defendant(s).
And why wait for aggrieved private litigants (anti-maskers and anti-vaxxers) to sue governmental entities that impose mask requirements when that can be handled inter-governmentally, so to speak?
And if it were to come to an appeal or mandamus, as it likely would, let the judicial Republicans on the top court take the heat for affirmatively squashing efforts to mitigate the disaster, should they endeavor to affirm the validity of the Governor’s proscription of disaster-coping efforts by local officials.
WHY DEFIANCE ?
Defiance may be a poor choice of term for strategic and public relations reasons. It implies that Abbott’s order is legitimate and that the defiers are scofflaws who just disagree with it and resent having to follow it.
On the premise that Abbott’s anti-mandate ban is void or unconstitutional — or that he signed in a state of non compos mentis — it could simply be ignored, couldn’t it?
If defiance it has to be, why not at least call it nonviolent civil disobedience?
Robby,
Is there some medical reason that infected illegals can’t, in turn, infect Americans, including Texans? Can I remind you that those infected, “unaccompanied minor migrants,” AKA illegal alien children that Biden is illegally resettling in the US, in violation of our own laws, will end up in schools? He imported 19,000 illegal alien kids just last month. Maybe they’ll end up in YOUR kid’s school. Is there some reason that an infected illegal child can’t then infect YOUR child?
American infected? Yes, they can infect your child. Illegal alien infected? Nah, they can’t infect your child. Is that your position?
This is Jason’s point, if I’m understanding it correctly.
Bill, please provide the law Biden is breaking. You can’t, can you, since Biden himself isn’t violating anything? To make it simpler for you, please provide the section of the US Code you believe is being violated by resettling the immigrant children. If you really think a law is being violated, why haven’t you gone to a Federal Court and asked for an injunction?
Bill, yeah I think that’s my point. If COVID was such a threat, why is the only action to blame Abbott for not allowing schools to force kids to wear masks. Why not support Abbott’s efforts to protect the border. The progressive MO is apparently to use COVID for political gain by blaming political opponents, even though there is no logic in blaming everything on Abbott. If you believe masks protect your kids send them to school with a mask.
I saw a You Tube video with the scary headline that the unvaccinated are 25 times more likely to die of COVID. Watching the video, I saw that if you are vaccinated, you have a 99.999% chance to survive. That means your chance of death is 0.001%. Now, multiply that by 25, and you get 0.025% chance of dying if you are unvaccinated. That still puts your personal odds of surviving well over 99%. For this, our society should be turned upside down, and our government given totalitarian powers?
Kids go to school and get sick. They are germ factories. I remember every year, right after Labor Day, I would get an itch in my throat, which quickly turned into a cold. By the time that first cold cleared up, I would be getting an October or November cold. And a few more to come in December through April. I got strep throat several times in second grade. Our teacher kept getting it and giving it to the kids. Chicken pox and upset stomachs, too. If a kid gets COVID they are extremely unlikely to have a serious case.
But you can’t counter illogical and emotional rage with logic. Which is why the media is using angry attacks on Trump, Abbott, whomever they don’t like. You get brainwashed, swept into the rage, and then, you can’t even consider a logical alternative.
8 U.S. Code § 1324 – Bringing in and harboring certain aliens
(a) Criminal penalties
(1)
(A) Any person who—
(i) knowing that a person is an alien, brings to or attempts to bring to the United States in any manner whatsoever such person at a place other than a designated port of entry or place other than as designated by the Commissioner, regardless of whether such alien has received prior official authorization to come to, enter, or reside in the United States and regardless of any future official action which may be taken with respect to such alien;
(ii) knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, transports, or moves or attempts to transport or move such alien within the United States by means of transportation or otherwise, in furtherance of such violation of law;
(iii) knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place, including any building or any means of transportation;
(iv) encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law; or
(v)
(I) engages in any conspiracy to commit any of the preceding acts, or
(II) aids or abets the commission of any of the preceding acts,
shall be punished as provided in subparagraph (B).
(B) A person who violates subparagraph (A) shall, for each alien in respect to whom such a violation occurs—
(i) in the case of a violation of subparagraph (A)(i) or (v)(I) or in the case of a violation of subparagraph (A)(ii), (iii), or (iv) in which the offense was done for the purpose of commercial advantage or private financial gain, be fined under title 18, imprisoned not more than 10 years, or both;
(ii) in the case of a violation of subparagraph (A)(ii), (iii), (iv), or (v)(II), be fined under title 18, imprisoned not more than 5 years, or both;
(iii) in the case of a violation of subparagraph (A)(i), (ii), (iii), (iv), or (v) during and in relation to which the person causes serious bodily injury (as defined in section 1365 of title 18) to, or places in jeopardy the life of, any person, be fined under title 18, imprisoned not more than 20 years, or both; and
(iv) in the case of a violation of subparagraph (A)(i), (ii), (iii), (iv), or (v) resulting in the death of any person, be punished by death or imprisoned for any term of years or for life, fined under title 18, or both.
Nobody gets to the border without paying the drug cartels to get there, then Biden completes the last mile delivery of those illegals who have engaged in criminal conspiracy to get themselves to the border. Biden puts them on buses and planes, at taxpayer expense, without the kind of ID YOU would need for the same passage.
RE: (A) Any person who …
I doubt that the executive branch of the U.S. Government qualifies as a person under this statute. And President Biden in his official capacity is probably immune to criminal prosecution for how he carrries out immigration policy.
Looking forward to learning something new, should I be mistaken.
So, the government, and government officials are all above the law. Good to know. Got it. And since Biden can’t be prosecuted now, would you support him being prosecuted for the hundreds of thousands of counts of violating 8 U.S. Code § 1324 he is clearly guilty of, after leaving office? I propose that Biden and anyone he has ever known be relentlessly be hounded to the ends of the Earth, in perpetuity.
I mean, we have precedent for exactly that, so why not?
What about all the government and NGO folks that participated in this scheme to violate US immigration law? Not only have they committed crimes, they’re guilty of RICO violations……they are all part of a coordinated mass conspiracy to violate US law.
Sounds a lot like Obama’s B-Day celebration…..rules for thee, not for me.
“It’s good to be the King!”
~Mel Brooks
How prescient was that movie?
One more thought:
“Carrying out immigration policy.”
What Biden is doing is like passing out free pandemic lockdown crack cocaine to inner city residents and calling it “drug policy.” It’s not policy, so much as it is a crime spree.
And both ‘policies’ have the same adverse consequences to their communities. Look how McAllen is suffering right now. How many citizens in La Joya, TX are now infected, hospitalized, or dead because Biden shipped a whole hotel full of infected illegals to their town?
Since the Dickinson politician is guilty of all kinds of crimes for not being injected, it would be logical to assume that the folks that brought a gaggle of uninfected and loosed them on unsuspecting townspeople would be guilty of the same kind of crimes.
https://twitter.com/TrumpJew2/status/1424373805296889856
For those that care, here’s video from Obama’s big ass, maskless birthday bash. Look at all those people in close quarters, having fun, without a care in the world. I guess we can tell that Sly and Milhous didn’t plan the party, considering their fixation with mask wearing.
The racists have lies and whines. Covid rates are much higher in racists/republican counties.
https://www.nytimes.com/interactive/2021/us/covid-cases.html
If people like Bill would get their vaccines and wear masks, they would not be dying, like that guy from Dickenson.
“The election was stolen” and “those dirty brown people are causing disease” aren’t coherent points. They’re the BS notions of bigots and cons. There’s no point in trying to counter that with logic and facts, because there’s no logic or fact supporting that nonsense. Bigfoot isn’t real. The moon landing actually happened. The international Jewish conspiracy isn’t trying to steal our Christian white women and replace white people. COVID isn’t spreading in the US because of immigration. The 2020 election has consistently proven to have been remarkably secure with minimal fraud, and most fraud that’s been uncovered in that process was perpetrated by Trump voters (but then it’s easy to be a majority of what, an incident count in the teens?).
They’re filling the air with particulate fecal matter, and the only sane response is to turn on a big fan and blow it all back in their faces.
My fully vaccinated family is going to be watching people die over the next month of two because of the disingenuous crap spread by nutbars like Jason, and the aid and comfort of smug bigots like Bill, and they’re going to keep trying to repeat the January 6th coup attempt until either they succeed or people who don’t agree with them get angry and stop waffling and treating them like they’re reasonable.
Robbie, you are on another planet. You can certainly counter what I said with logic and facts. Here is what I said: it makes no sense that they are blaming and attacking Abbott because he doesn’t allow schools and governments to force masks, but, at the same time, not praise him for trying to secure the border from infected and undocumented migrants. Please explain the logic in this contradiction.
And, glad to see that you and your fully vaccinated family will watch people die, perhaps also get a seat along the freeways and watch the car smashes.
Some talk about “personal responsibility” in schools but, as government leaders, we’re responsible for the safety of those we serve. Our responsibility extends beyond the “personal.” We can’t just tell Texas children they’re on their own. Schools need to require masks.
— A leader speaking.
Jason, you buy seats for the Daytona 500 and others like that to watch car smashes.
Jason, no one could explain how your brain works, I mean no one!
But, that applies to most Republicans, they are supporting the overthrow of our country by violent means. They support attacking police. The terrible party you are associating with Jason.
LEGAL CHALLENGE TO ABBOTT’S MASK-BAN ORDER UNDER WAY IN DALLAS
Here comes your nonviolent legal defiance of the Governor:
Last week, Dallas County Commissioner J.J. Koch sued County Judge Clay Jenkins after the latter ejected him from the Court’s in-person session for refusing to wear a face covering. Koch relies on Abbott’s GA-38 and argues that Jenkins is disobeying it. He seeks a declaratory judgment invalidating Jenkins’ order, and — for good measure — asks the District Judge to remove Jenkins from office.
Jenkins has since counterclaimed, and is challenging Abbott’s order as void or voidable on various grounds, including violation of the separations of powers article of the Texas constitution.
There are two wrinkles, however, that have a bearing on the broader implications:
First, Jenkins relies on the Texas Supreme Court’s administrative control over the judiciary, including commissioners court. The SCOTX recently issued its 40th Emergency Order, and Jenkins argues that it precludes the application of Abbott’s order to his court. Koch, by contrast, contends that Jenkins is not acting in a judicial capacity. Commissioners court operates as a legislative body for the county, rather than a court that adjudicates cases. Whichever contention is correct, it’s an issue that does not come up with home-rule cities or school districts, which are clearly not part of the judicial department.
Second, the counterclaim for declaratory judgment on the validity of Abbott’s order GA-38 is only contingently asserted at this point, because Jenkins is also asking for Koch’s removal petition to be dismissed for failure to comply with proper procedure unique to county-judge removal actions.
Still, some of Jenkins’ legal arguments as to why Abbott’s order, and the purported preemption of local COVID mitigation orders contained in it, is invalid may be of interest to other local governments facing the mask mandate issue.
Inter alia, Jenkins argues that the suspension authority in the Disaster Act applies to regulatory statutes administered by state agencies, not local government orders enacted to cope with a declared disaster, and that such suspension of laws by the Governor must serve the goal of furthering the disaster response, not thwarting it.
The case is J.J. Koch v. Clay Jenkins, in his official capacity as Dallas County Judge, Case No. DC-21-10101, in 116th District Court, Dallas County, Texas. Documents can be accessed online through the Clerks’ combined website.
Koch is represented by Warren Norred, the Republican Party activist of Shelley Luther fame. Jenkins has an outside law firm handle his defense and counterclaim.
Koch seeks a temporary restraining order. Jenkins has counter-moved to have citation quashed for technical noncompliance reasons.
The docket does not yet reflect a ruling.
Pingback: Dallas ISD to require masks – Off the Kuff
K, if I believed that the Supreme Ct. of Texas gave a hoot about the law, I would read what the argument for and against are. If the Supreme Ct. of Texas wants to rule a certain way, they will do so.