Room service, as always.
The Texas Supreme Court on Sunday temporarily blocked mask mandates in Dallas and Bexar counties, marking a pivotal moment in the showdown between state and local government as coronavirus cases and hospitalizations surge in Texas.
The ruling comes after several school districts and a handful of counties across the state defied Gov. Greg Abbott’s executive order that restricted local entities from instituting mask mandates. On Friday, the 4th Court of Appeals in San Antonio upheld a lower court ruling that permitted Bexar County to require mask-wearing in public schools. Shortly after, the 5th Court of Appeals in Dallas upheld a more far-reaching order from Dallas County Judge Clay Jenkins that required masks in public schools, universities and businesses.
In a petition for a writ of mandamus to the Texas Supreme Court, Texas Attorney General Ken Paxton’s office said the Texas Disaster Act of 1975 gives the governor power to act as the “‘commander in chief’ of the state’s response to a disaster. Attorneys representing cities and counties that have sued Abbott over his executive order have argued that his orders should not supersede local orders.
“Let this ruling serve as a reminder to all ISDs and Local officials that the Governor’s order stands,” Paxton said in a tweet on Sunday after the ruling.
Abbott’s response to the decision was less pointed, specifying that his executive order does not prohibit mask-wearing.
“Anyone who wants to wear a masks can do so,” Abbott said in a tweet.
See here and here for the background. Abbott’s tweet is pathetic in its misrepresentation of the issue. Masking only works if the people who are sick – whether they know it or not – are in compliance. That means that the people who are most likely to be sick – unvaccinated adults and unvaccinated children, which is all children under the age of 12 – especially need to be masked, and as we very well know, that first group and their children are not ever going to do that voluntarily. My mask doesn’t protect me from you (unless I’m wearing an N-95), it protects you from me. If you’re not reciprocating, it’s not doing us any good. The problem with Greg Abbott is not that he doesn’t understand this, it’s that he values the opinion of the largely unvaccinated and completely indifferent Republican primary voters more than anything else. And so here we are.
As for Paxton, he’s wrong in two ways. First:
.
This is incorrect. #SCOTX issued stays of lower-court rulings that had temporarily blocked GA-38. No school district was “ordered … to follow” the Executive Order. All that took place was that judicial restraining orders *against* that Executive Order were frozen pending appeal.— Steve Vladeck (@steve_vladeck) 7:35 PM – 15 August 2021
And second:
Austin Mayor Steve Adler and Travis County Judge Andy Brown last week required face coverings to be worn inside public schools and government buildings to deal with a surge in local COVID-19 infections. Both insisted the orders remained in effect because Sunday’s court action did not involve local rules.
“While we await a final decision, we believe local rules are the rules,” Adler said on Twitter. “Regardless of what eventually happens in the courts, if you’re a parent, please keep fighting to have everyone in schools masked. We stand with you.”
[…]
A number of other mask mandates rely on trial court orders not yet before the Supreme Court, including restraining orders issued Friday in Travis County for Harris County and a half-dozen South Texas school districts.
Harris County Attorney Christian Menefee said Sunday’s Supreme Court action did not affect his county, and he plans to move forward toward an expected injunction hearing like Dallas and San Antonio.
The Chron story makes the same point. To be sure, Paxton can pursue the same kind of writ against Harris and Austin and those other school districts – several others that have as far as I know not been involved in litigation yet have implemented mask mandates – and when SCOTx issues a final ruling it can and likely will encompass all of the other jurisdictions in its order. But until then, no one other than Dallas and Bexar Counties are directly affected. And for what it’s worth, it’s not clear to me what would happen if they just decide to tell Abbott and Paxton and SCOTx to go pound sand. They haven’t yet, and they may never, but don’t throw out the possibility. The San Antonio Report has more.
UPDATE: Interesting:
.
#BREAKING: Dallas ISD will continue with its mask mandate at this time.Superintendent Michael Hinojosa says the order applied to Dallas County – and did not say one word about @dallasschools.
— Christine Vandergriff (@c_vandergriff) 7:33 PM – 15 August 2021
I mean, he’s not wrong. And this is what I’m saying about the state’s ability to enforce this. As above, Paxton could go after DISD and make them comply. But until and unless he does, what’s stopping them from continuing on as they had planned?
UPDATE: This too:
.
Per @COSAGOV, the Bexar County health authority’s public school mask mandate remains in effect, despite today’s order from the Texas Supreme Court. #txlege— Jasper Scherer (@jaspscherer) 8:23 PM – 15 August 2021
At this point it’s not clear to me that anyone truly feels bound by this SCOTx order.
SILENCE=DEATH
AGGRESSION=HATE
It should be noted that the people who are pushing masks and vaccinations on others are the aggressors. Aggression is the main symptom of hate.
The opponents of mask mandates and forced vaccination are not pushing anything on anyone. They are not asking anyone to be prohibited from wearing their masks, getting vaccinated, or staying at home forever.
Control is the biggest symptom of authoritarianism.
”
Off the Kuff Rotating Header Image
SCOTx does what SCOTx does
Aug 16th, 2021 by Charles Kuffner.
Room service, as always.
The Texas Supreme Court on Sunday temporarily blocked mask mandates in Dallas and Bexar counties, marking a pivotal moment in the showdown between state and local government as coronavirus cases and hospitalizations surge in Texas.
The ruling comes after several school districts and a handful of counties across the state defied Gov. Greg Abbott’s executive order that restricted local entities from instituting mask mandates. On Friday, the 4th Court of Appeals in San Antonio upheld a lower court ruling that permitted Bexar County to require mask-wearing in public schools. Shortly after, the 5th Court of Appeals in Dallas upheld a more far-reaching order from Dallas County Judge Clay Jenkins that required masks in public schools, universities and businesses.
In a petition for a writ of mandamus to the Texas Supreme Court, Texas Attorney General Ken Paxton’s office said the Texas Disaster Act of 1975 gives the governor power to act as the “‘commander in chief’ of the state’s response to a disaster. Attorneys representing cities and counties that have sued Abbott over his executive order have argued that his orders should not supersede local orders.
“Let this ruling serve as a reminder to all ISDs and Local officials that the Governor’s order stands,” Paxton said in a tweet on Sunday after the ruling.
Abbott’s response to the decision was less pointed, specifying that his executive order does not prohibit mask-wearing.
“Anyone who wants to wear a masks can do so,” Abbott said in a tweet.
See here and here for the background. Abbott’s tweet is pathetic in its misrepresentation of the issue. Masking only works if the people who are sick – whether they know it or not – are in compliance. That means that the people who are most likely to be sick – unvaccinated adults and unvaccinated children, which is all children under the age of 12 – especially need to be masked, and as we very well know, that first group and their children are not ever going to do that voluntarily. My mask doesn’t protect me from you (unless I’m wearing an N-95), it protects you from me. If you’re not reciprocating, it’s not doing us any good. The problem with Greg Abbott is not that he doesn’t understand this, it’s that he values the opinion of the largely unvaccinated and completely indifferent Republican primary voters more than anything else. And so here we are.
As for Paxton, he’s wrong in two ways. First:
And second:
Austin Mayor Steve Adler and Travis County Judge Andy Brown last week required face coverings to be worn inside public schools and government buildings to deal with a surge in local COVID-19 infections. Both insisted the orders remained in effect because Sunday’s court action did not involve local rules.
“While we await a final decision, we believe local rules are the rules,” Adler said on Twitter. “Regardless of what eventually happens in the courts, if you’re a parent, please keep fighting to have everyone in schools masked. We stand with you.”
[…]
A number of other mask mandates rely on trial court orders not yet before the Supreme Court, including restraining orders issued Friday in Travis County for Harris County and a half-dozen South Texas school districts.
Harris County Attorney Christian Menefee said Sunday’s Supreme Court action did not affect his county, and he plans to move forward toward an expected injunction hearing like Dallas and San Antonio.
The Chron story makes the same point. To be sure, Paxton can pursue the same kind of writ against Harris and Austin and those other school districts – several others that have as far as I know not been involved in litigation yet have implemented mask mandates – and when SCOTx issues a final ruling it can and likely will encompass all of the other jurisdictions in its order. But until then, no one other than Dallas and Bexar Counties are directly affected. And for what it’s worth, it’s not clear to me what would happen if they just decide to tell Abbott and Paxton and SCOTx to go pound sand. They haven’t yet, and they may never, but don’t throw out the possibility. The San Antonio Report has more.
“UPDATE: Interesting:
I mean, he’s not wrong. And this is what I’m saying about the state’s ability to enforce this. As above, Paxton could go after DISD and make them comply. But until and unless he does, what’s stopping them from continuing on as they had planned?”
I will wait for a legal expert to write an extended comment about the consequences of trying to enforce an illegal mandate. They can have the mandate, but they can’t have any consequences for those who don’t comply.
BACK TO THIS BULLSHIT
“My mask doesn’t protect me from you (unless I’m wearing an N-95), it protects you from me. ”
Now we are saying that you are sick, but don’t know it, as we did all along. The deadliest disease ever, but most of the infected don’t even know it. This is more likely, of course, in the vaccinated. But please show some evidence that wearing a mask stops you from spreading the deadliest disease ever? Please refute the published papers that show that asymptomatic spread is not very likely.
The BIG LIE
the media keeps persisting in the Big Lie, that this is a pandemic of the un-vaccinated. Even the CDC has said that the vaccinated have just as much virus in their mouths and noses, and are just as capable of spreading it and just as capable of getting sick as the vaccinated. This is a big change from the 95% efficacy that was boasted prior to the mass vaccination campaign.
The Nova Vax is probably going to be better, and safer, the authorities should tell you to wait for that. We also need to be aware that in the middle of summer hospitals are seeing an RSV surge greater than they would expect in the middle of winter. There is no treatment and no vaccine for RSV.
Likely the isolation of children who didn’t go to school is the reason why the virus didn’t spread in the winter, and immune systems weakened. As kids started playing together this summer, and going to daycare as parents return to work, the virus began to surge. This has no cure and no vaccine, and this is why I recommend you wear your mask. In healthy adults and teens, RSV is just another cold, but it can cause havoc in very small children, the elderly, and immuno compromised.
Can’t wait for a future Democratic Governor to ban municipalities from issuing curfews under the Disaster Act following a major hurricane, effectively turning “looting hordes” loose on neighborhoods such as Tanglewood. The state Supreme Court just established that precedent.
SUPREME SCREWBALL WITHOUT THE COMEDY
If you don’t quite understand what to make of the supreme interim issuance this past Sunday, you won’t be alone.
The Court still hasn’t posted the actual orders on the respective online dockets. What was posted yesterday on the order/opinion release page was merely an announcement that a stay was granted in each case, but what exactly was stayed?
According to a confusing contemporaneous press release, the trial court cases were not stayed, and the scheduled injunction hearings in the two trial courts in San Antonio and Dallas are not affected by this pro-Abbott SCOTX action. The one in San Antonio is on right now: Judge Arteaga Zoom Session No. 98671124713, also being streamed on YouTube, assuming that works out technically (she doesn’t do YouTube).
THE ABBOTT-AG ALLIANCE ACTUALLY SUED THE COURTS OF APPEALS
In Tex. No. 21-0687, the SCOTX docket identifies District Judge Antonio Arteaga as the Respondent, while in No. 21-0686 (the case from Dallas) no Respondent is shown at all. The District Judge in that case was Tonya Parker.
Regardless, the AG actually filed the two mandamus petitions against the FOURTH and FIFTH COURT OF APPEALS, respectively, complaining about them not having given the Governor what he wanted. What he wanted was for these appellate courts to vacate the TROs issued by the trial court judges against Abbott, or at least to stay their effect temporarily pursuant to appellate rule 52.10. They reiterate that request in the SCOTX, but they didn’t name the trial judges as respondents for mandamus relief. Go figure.
The trial court TRO restrains the Governor from enforcing the mask-mandate-portion of GA-38. They don’t determine the legal dispute over the correct construction and application of the Texas Disaster Act on the merits.
The two mandamus cases in the courts of appeals in San Antonio (4th COA) and Dallas (5th COA) have already been finally determined. The Fourth COA even already shows the status of the mandamus case there as “Case stored.” But the SCOTX petitions against these appellate courts supposedly remain pending for a possible decision on the merits some time later.
The mandamus stemming from the San Antonio case will be moot if the judge there issues a temporary injunction following this morning’s hearing. The Abbott-AG Alliance will immediately appeal if it goes against them, as is expected, which will then result in an automatic stay (“supersedeas”). Or so they will claim. Somewhat perversely, in light of the contention that Abbott is the commander in chief once he declares a statewide disaster, and in light of the threats to the local governmental officials of legal action if they disobey him. The AG is apparently arguing in a plea to the jurisdiction that Abbott is not a proper defendant, and that the trial court should dismiss the lawsuit against him because he doesn’t actually enforce it.
The City and County attorneys have objected to the jurisdictional motion on the ground that they didn’t have sufficient prior notice, and are not ready to proceed. So the temp. injunction hearing — which is evidentiary — is going forward now while the jurisdictional plea may or may not be reached for a ruling.
RELATOR vs. RESPONDENT vs. REAL-PARTY-IN-INTEREST CONFUSION
Another oddity: Although Harris County is suing Abbott in Travis County over the same executive order, County Attorney Menefee filed an Amicus brief in Support of the Relator.
The Relator in a mandamus proceeding is the party seeking relief, here Greg Abbott (represented by the Attorney General). Harris County is actually backing Clay Jenkins, the real party in interest in the mandamus stemming from Dallas TRO. The error must have been detected promptly, for in 21-0687 Menefee filed an amended amicus brief in support of both the Respondents (the judges on the court of appeals) and the Real Party in Interest (Clay Jenkins).
STATEMENT OF INTEREST AS FRIEND OF THE COURT
Harris County files as Amicus Curiae in the underlying case. COVID-19 and the Delta variant are currently ravaging Harris County; Amicus Curiae asks this Court to deny Governor Abbott’s mandamus request that seeks to unlawfully hamstring local officials, who are battling the COVID-19 pandemic on the ground in their communities. Harris County officials, including its Commissioners Court and the local health authority, have issued orders designed to mitigate the spread of COVID-19 amongst County employees and school children, teachers, and staff.
Harris County has a significant interest in protecting its own public health order and its residents and strongly urges this Court to uphold the Dallas and Bexar County temporary restraining orders because GA-38 exceeds the Governor’s authority under the Disaster Act and Governor Abbott cannot usurp local officials’ proactive efforts to combat the COVID-19 pandemic.
Dr. Hochman, IF you voted, would you have voted for Abbott ? I ask because because he seems to be doing the exact thing you’re against.
I don’t ask my doctor for political advice. Why on earth should I take medical direction from politicians if it differs from what my doctor is saying and doing?
Slow-Motion Autogolpe Update …
MORE LEGAL CHAOS … BROUGHT TO YOU BY ABBOTT-AG ALLIANCE
Paxton’s litigators are now trying to convert the still-pending supreme court mandamus against the Fifth Court of Appeals (in Dallas) into a mandamus against a district court judge in Austin (Jan Soifer), who has granted additional TROs against Governor Abbott’s GA-38 (the mask-mandate prohibition order he issued while purportedly relying on extraordinary powers under the Texas Disaster Act.).
… thus inflicting even more sovereing injury upon the “Commander in Chief” of the war against the local disaster managers.
That’s because Dallas County Judge Jenkins concluded last night that the SCOTX stay order in the pending litigation didn’t actually affect his mask order.
Paxton’s celebratory tweet from yesterday went like this:
“Breaking: TX Supreme Court sides with the rule of law. Today, SCOTEX has ordered Dallas Co & Dallas ISD to follow Exec. Order GA-38. Local mask mandates are illegal under GA-38. Let this ruling serve as a reminder to all ISDs and Local officials that the Governor’s order stands.”
So, what’s up with that:
1. Dallas ISD isn’t even a party.
2. Dallas County qua county isn’t a party either. County Judge Jenkins is.
3. The subject matter of the mandamus was the TRO enjoining Abbott.
4. The legal issues in dispute haven’t been resolved yet. So, while GA-38 stands (or was revived, if you will), its validity remains in question until Abbott’s Court rules otherwise in a merits decision.
Finally, does any Texas lawyer in Texas refer to the SCOTX as SCOTEX (though it would admittedly make more sense)? And why does he want to mandamus the 345th District Court as opposed to the judge that actually signed the TROs, i.e. that district court’s presiding judge, Jan Soifer?
More L’état, c’est moi
Also, once more, the Solicitor General is treating Abbott and “The State” as coterminous and interchangeable even though they are concurrently intervening as “The State” in the cases in Bexar and Dallas County trial courts while also claiming that Abbott, in his official capacity, is not a proper defendant.
Not my area of specialty, but I don’t think 1 or 2 make much sense. 1. If a law applies to one governmental entity, it likely will apply to others when litigated. Although perhaps masks in schools are somewhat different since children cannot yet be vaccinated. 2. I would think a lawsuit against a county judge in his official capacity is equivalent to a lawsuit against the governmental unit.
TEMPORARY INJUNCTION STAGE (San Antonio mask-mandate case)
Following an evidentiary hearing on Zoom that lasted several hours, Bexar County District Court Judge Antonia Arteaga has ruled on the joint application of City of San Antonio and Bexar County for a temporary injunction against Greg Abbott.
The gist: Governor’s GA-38 is enjoined as to the part that prohibits local mask mandates.
Kibitzer’s power went out at the critial moment and interrupted the video and audio feed, but here is a news story:
https://www.ksat.com/news/local/2021/08/16/bexar-county-wins-latest-court-battle-against-gov-abbott-keeping-mask-mandates-in-place-for-now/
More than 300 people were on the Zoom session at some point during the proceedings. About 400 for the announcement of the ruling.
The legal argument presented by both sides over the course of the hearing were all previously made in court filings. Nor did the live testimony add much to the previously-filed affidavits. More details were given on the staffing shortage and challenges to the hospital system. A few evidentiary objection (hearsay, relevancy) and pretty lame cross-examination. The AG is clearly pounding the legal arguments in favor of gubernatorial supremacy, with reference to Texas v. El Paso opinion from last year, which is not binding in the 4th appellate district, and has been rejected by the Dallas Court of Appeals.
The order is subject to immediate interlocutory appeal, which will to the the Fourth Court of Appeals in the first instance. That appellate court previously denied emergency relief against the TRO signed by the same trial court judge last week.
Judge info here:
https://www.bexar.org/1779/57th-Civil-District-Court
Case info: Cause No. 2021CI16133 in the 57th District Court of Bexar County (San Antonio, Texas); City of San Antonio and Bexar County v. Greg Abbott, in his Official Capacity as Governor of Texas.
She didn’t reach the AG’s jurisdictional challenge. A denial of the plea to the jurisdiction asserted on the Governor’s behalf would have allowed for an immediate interlocutory appeal that would result in an automatic stay.
TEMPORARY INJUNCTION STAGE (San Antonio mask-mandate case)
Following an evidentiary hearing on Zoom that lasted several hours, Bexar County District Court Judge Antonia Arteaga has ruled on the joint application of City of San Antonio and Bexar County for a temporary injunction against Greg Abbott.
The gist: Governor’s GA-38 is enjoined as to the part that prohibits local mask mandates.
Kibitzer’s power went out at the critial moment and interrupted the video and audio feed, but here is a news story:
https://www.ksat.com/news/local/2021/08/16/bexar-county-wins-latest-court-battle-against-gov-abbott-keeping-mask-mandates-in-place-for-now/
More than 300 people were on the Zoom session at some point during the proceedings. About 400 for the announcement of the ruling.
The legal argument presented by both sides over the course of the hearing were all previously made in court filings. Nor did the live testimony add much to the previously-filed affidavits. More details were given on the staffing shortage and challenges to the hospital system and ambulance service. A few evidentiary objection (hearsay, relevancy) and pretty lame cross-examination. The AG is pounding the legal arguments in favor of gubernatorial supremacy, with to the reference to Texas v. El Paso opinion from last year, which is not binding in the 4th appellate district, and has been rejected by the Dallas Court of Appeals.
The order is subject to immediate interlocutory appeal, which will to the the Fourth Court of Appeals in the first instance. That appellate court previously denied emergency relief against the TRO signed by the same trial court judge last week.
Case info: Cause No. 2021CI16133 in the 57th District Court of Bexar County (San Antonio, Texas); City of San Antonio and Bexar County v. Greg Abbott, in his Official Capacity as Governor of Texas.
Commentarial note: Kuff, please cancel the embargoed version of this post, which is a duplicate. It went into limbo because it contained 2 links, 1 too many.
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