Hey, remember that other lawsuit filed against Greg Abbott’s ban on mask mandates, by the Southern Center for Child Advocacy? I noted it in passing in this post, and then like you I forgot about it. And then on Sunday afternoon, this happened:
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Per Hank Bostwick, Attorney for SCCA, until the AG petitions the Supreme Court to stay, the SCCA’s TRO is in effect.— Liz Rivera (@MissLizRivera) 9:01 PM – 15 August 2021
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ACTION ITEM: Contact your school boards. This TRO functions statewide, so share it with your school boards. Request a special board mtg. Demand a vote on a mask mandate. Your boards DO have the power to challenge Abbott and mandate masks. #SafeSchoolsForALL— Liz Rivera (@MissLizRivera) 2:15 AM – 16 August 2021
As of Monday morning, I had not seen any news coverage of this. As discussed before, that Supreme Court ruling only applied to Dallas and Bexar counties, and the affected school districts in those counties appeared to be interpreting it in a way that said it didn’t apply to them. Other jurisdictions like Harris County and Austin were not covered, so their mandates were also not affected.
Later in the day, there was this story:
After the Texas Supreme Court’s decision, several Dallas County school districts started backtracking, making masks optional once again, though Dallas ISD held firm.
But that same evening, a Travis County judge granted a new restraining order that temporarily blocks Gov. Greg Abbott from prohibiting mask mandates in Texas public schools.
The restraining order was granted in a case involving The Southern Center for Child Advocacy. Officials from the center did not immediately respond to requests for comment on Monday but noted on the group’s Facebook page that the restraining order — issued by Judge Jan Soifer in the 345th Judicial District — was in effect statewide.
“It was not one of the TROs blocked by the Texas Supreme Court yesterday afternoon,” the group wrote.
Richardson [ISD] Superintendent Jeannie Stone said the order allowed her district to keep a mask mandate in place as the school year is set to start on Tuesday.
“This ruling, at least temporarily, puts this decision where it should be — at the local level,” Stone said in a video announcement. In an interview with The Dallas Morning News, Stone said Richardson is committed to following the law and would adapt its decision making if the law changes.
The restraining order essentially allows individual districts the leeway to set their own mandates independent from their counties. Officials with the attorney general’s office asked the Supreme Court of Texas to block this order as well. The Texas Supreme Court did not grant the attorney general’s request on Monday for an immediate block based on the day before’s decision.
Attorney General Ken Paxton wrote to the Southern Center for Child Advocacy on Monday, asking the group to acknowledge on Monday that their temporary restraining order is “void and of no effect” because of the Texas Supreme Court decision.
Henry Green Bostwick II, an attorney representing the center, countered that he would withdraw the lawsuit against the state if Gov. Abbott altered his order to allow school districts to enforce mask mandates.
Paxton has vowed to take all school districts that violate Abbott’s mask mandate ban to court. Paxton falsely claimed Sunday evening that the Supreme Court’s decision ordered Dallas County and Dallas ISD to follow the governor’s order.
However, the decision did not mention Dallas ISD. A spokesman for Paxton did not return a request for comment on whether the attorney general planned to sue DISD over its mask requirement.
“Until there’s an official order of the court that applies to the Dallas Independent School District, we will continue to have the mask mandate,” Superintendent Michael Hinojosa said late Sunday.
[…]
Other school districts are signaling their intentions to jump into the legal fray, too.
DeSoto ISD trustees are scheduled to meet tonight to discuss authorizing their legal counsel to file a lawsuit against Abbott in order to allow the districts “to make local decisions regarding the health and safety of its students and employees,” according to the board’s agenda. Arlington ISD is expected to take up a similar vote later this week.
So, safe to say that for now, as of Monday afternoon, school districts that wanted to keep a mask mandate in place could do so. And then there’s this:
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The Tex Supreme Court did not strike down my face mask order. Rather they removed the stay on the GA 38. Unless I receive a ruling requiring otherwise, I will amend my order to remove the possibility of fines on non-compliant businesses but otherwise leave the order in effect.— Clay Jenkins (@JudgeClayJ) 9:52 PM – 15 August 2021
Here’s the DMN story if you can read it. Again I ask: Who is actually bound by that Supreme Court order? Far as I can tell, no one is paying it any heed, and now there’s the second court order that would seem to invalidate it, or at least contradict it. I can’t see this as anything but a temporary situation, and yet here we are. Until something else happens, it’s what the counties and school districts are saying that is in effect. I for one prefer it that way.
Blame Paxton for legal chaos and confusion
PAXTON: “Today, SCOTEX has ordered Dallas Co and Dallas ISD to follow Exec. Order GA-38. Local mask mandates are illegal under GA-38. ”
ACTUAL TEXT OF STAY ORDER:
1. Relator’s emergency motion for temporary relief, filed August 13, 2021, is
granted. The Temporary Restraining Order, dated August 10, 2021, in Cause No. DC-21-10101, styled Clay Jenkins, in his Official Capacity v. Greg Abbott, in his Official Capacity as Governor of the State of Texas, in the 116th District Court of Dallas County, Texas, is stayed pending further order of this Court, except to the extent that it sets a hearing on plaintiffs’ request for a temporary injunction.
2. The trial court’s temporary restraining order alters the status quo preceding this controversy, and its effect is therefore stayed pending that court’s hearing and decision on plaintiffs’ request for a temporary injunction. See In re Newton, 146 S.W.3d 648, 651 (Tex. 2004).
3. The petition for writ of mandamus remains pending before this Court.
Done at the City of Austin, this Sunday, August 15, 2021.
BLAKE A. HAWTHORNE, CLERK
SUPREME COURT OF TEXAS
BY CLAUDIA JENKS, CHIEF DEPUTY CLERK
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The other TROs are contained in the supplemental mandamus record in Tex. 21-0868, which – NOTA BENE – names the Dallas Court of Appeals as the Respondent, rather than District Court Judge Tonya Parker (who signed the TRO). The Dallas COA mandamus (No. 05-21-00687-CV) is already over: “Case stored” as of 8/13/2021.
Opinion cite: In re Greg Abbott, No. 05-21-00687-CV (Tex.App.-Dallas, Aug. 13, 2021)(orig. proc.)(writ of mandamus denied).
https://search.txcourts.gov/Case.aspx?cn=05-21-00687-CV&coa=coa05
But the mandamus against the Dallas court of appeals in the supreme court remains pending.
Meanwhiile, Paxton’s lieutentants tried to bootstrap his forthcomning challenges to other TROs into Tex. No. 21-0868. The Court promtply rejected that gambit in a procedural order issued yesterday. So they will have to bring a separate mandamus for each additional case if they have not done so already.
ADDITIONAL TROs in:
D-1-GN-21-003792, The Southern Center for Child Advocacy v. Abbott, in the 345th Judicial District, Travis County (TRO signed Aug. 15, 2021 by Judge Jan Soifer)
D-1-GN-21-003896, Harris County v. Greg Abbott, et al., in the 345th Judicial District, Travis County (TRO signed Aug. 15, 2021 by Judge Jan Soifer)
D-1-GN-21-003897, La Joya Independent School District, et al, in the 345th Judicial District, Travis County (TRO signed Aug. 15, 2021 by Judge Jan Soifer)
The TRO obtained by Harris County is the only one that also enjoins Ken Paxton, as enforcer.
The mandamus relating to the TRO obtained by Fort Bend County remains pending in the First Court of Appeals. A stay was issued in that case yesterday with reference to the stay in Tex. No. 21-0686 and 21-0867 (which should be moot, given the entry of a temporary injunction against Abbott in the underlying case yesterday).
The order in the Fort Bend case was signed by Justice Landau, a Democrat. Text follows below.
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ORDER
Appellate case name: In re Greg Abbott, in his Official Capacity as Governor of The State of Texas
Appellate case number: 01-21-00440-CV
Trial court case number: 21-DCV-286148
Trial court: 434th District Court of Fort Bend County
On August 13, 2021, Relator Greg Abbott, in his official capacity as Governor of the State of Texas, filed a petition for writ of mandamus challenging a temporary restraining order signed by the trial court on August 12, 2021.
In conjunction with the mandamus petition, relator filed an emergency motion requesting a temporary stay of the temporary restraining order pending our determination on the petition.
On August 15, 2021, the Texas Supreme Court issued orders granting relator’s requests for emergency stays pending the Court’s determination of relator’s mandamus petitions filed with the Texas Supreme Court challenging similar temporary restraining orders issued in Dallas and Bexar Counties. See In re Greg Abbott, In His Official Capacity as Governor of The State of Texas, No. 21-0686 (Dallas County); In re Greg Abbott, In His Official Capacity as Governor of The State of Texas, No. 21-0687 (Bexar County).
In light of the stay orders issued by the Texas Supreme Court, relator’s request for a stay in this case is granted. The stay does not affect the August 19, 2021 hearing on the temporary injunction. The mandamus petition remains pending.
Judge’s signature: __/s/ Sarah B. Landau_______
Acting Individually
Date: __August 16, 2021__
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Thanks for the summary, Kibitzer. Needless to say, the pace and subject matter of this appellate litigation at SCOTX is without direct precedent, although it resembles the frantic election litigation of 2020.
It’s unprecedented for a host of reasons:
1. No Texas Governor has ever signed an executive order like GA-38.
2. Public disasters like COVID have historically brought partisans together to find solutions. The urgency of this litigation results entirely from and executive who has no interest in compromise. Tragic.
3. Texas procedure makes TROs non-appealable. TROs are designed to provide temporary relief for a very short time.
4. Paxton and his bunch are extraordinarily aggressive and their aggression borders on arrogance, even when it doesn’t cross the border.
Indeed, it’s hard to keep up, and the dynamic here is reminiscent of last’s year’s ping-pong of rulings in the election wars between and among multiple layers of state and federal courts.
Here is the next iteration of this year’s evolving saga:
Working Title: It’s all about me, your Governor, getting his way
In Re Greg Abbott, Tex. No. 21-0701, filed August 17, 2021
(1) Petition for Writ of Mandamus,
(2) Relator’s Emergency Motion for Temporary Relief,
(3) Mandamus Record (126 pages).
This is a fully packed omnibus against Judge Soifer in Austin, who signed 3 TROs against Abbott on Sunday evening. See Kibitzer commentary from earlier today for case information.
DRAMATIS PERSONAE
Relator [Petitioner]: Greg Abbott, in his Official Capacity as Governor of the State of Texas
Respondent [Defendant]: The Honorable Jan Soifer
Real Parties In Interest [Adverse parties in the trial court]:
Harris County, Texas
The Southern Center for Child Advocacy
La Joya Independent School District
Edinburg Consolidated Independent School District
Hidalgo Independent School District
Brownsville Independent School District
Crowley Independent School District
Edcouch-Elsa Independent School District
Lasara Independent School District
Pharr-San Juan-Alamo Independent School District
RATIONALE FOR EMERGENCY RELIEF:
Unless the Supremes intervene immediately, the Sovereign will suffer:
“Without this Court’s swift action, the TROs will encourage localities
across the State to act in direct contravention of the Governor’s order. More
importantly, they more broadly call into question the Governor’s ability to address
the pandemic. The TROs prevent the Governor from carrying out his duties as
commander-in-chief, frustrating the State’s interests in enforcing state law, and
therefore inflict irreparable harm. See State v. Hollins, 620 S.W.3d 400, 410 (Tex.
2020). For these reasons, the Court should grant a stay.”
Note: In State v. Hollins, AG Paxton and the Supremes put the then-Harris County Clerk in his place. Hollins dared to take action to make it easier for Harris County to vote under pandemic conditions. In that case, Paxton equated himself with the State. Ditto in State v. El Paso County.
In the current pandemic litigation season, Greg Abbott himself is The State.
Abbott has paid by his life, he has now tested positive for the deadliest virus ever of all time. He should have been vaccinated. Never mind, he was vaccinated, he must be one of the extremely rare breakthrough cases so he should be studied in detail.
Our thoughts and prayers are with Governor Abbott as he isolates and, we hope, survives his bout of COVID, and also with those who attended the fundraising event with him (and mostly without masks) last night.
Truly and actually. I don’t want people to catch and suffer from this disease. I consider that a thing that we should be trying to prevent, and I mourn for those affected by it. Get well soon, Governor. Ideally also do appropriate things to help prevent others from catching and spreading the disease, but get well soon, too.
Thanks, Kibitzer.
Abbott is still arguing: “But under the Disaster Act, the Governor—not local officials—“is the commander in chief” of the State’s disaster response. Tex. Gov’t Code § 418.015(c).” But section 418.015(c) says:
“During a state of disaster and the following recovery period, the governor is the commander in chief of state agencies, boards, and commissions having emergency responsibilities.” “Commander in chief” does not mean what Abbott thinks it means.
School districts and counties are not “state agencies, boards, and commissions having emergency responsibilities.” They are “local government entities.” Tex. Gov’t Code § 418.004(10). Abbott gets to control the state agencies that are in the executive branch, but not counties and school districts. The supreme court says there is a distinction between state agencies, which generally exercise statewide jurisdiction, and political subdivisions like municipalities (and counties), which have limited geographic jurisdiction. Texas Dep’t of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 643 (Tex. 2004).
This seems a very basic problem with Abbott’s arguments. He isn’t commander in chief of all our governments, with the dictatorial powers he claims. Just the state agencies.
The lawyers for the counties and school districts have done a great job briefing this argument for SCOTX. It’s hard for me to see how the rule of law lines up with Abbott and Paxton in this case.
Best wishes to the Governor for healing and comfort.
Gregg Abbott and his GOPers have killed thousands of Texans and bankrupted hundreds of thousands of Texas families just by not expanding Medicaid. Add in the massive heaps of bodies of loved ones due to his horribly botched Covid response and then feel sorry for Gregg Abbott, and send him tender wishes.
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