Clay Jenkins
A district court judge has sided with Dallas County Judge Clay Jenkins in his dispute with Gov. Greg Abbott over the county’s mask mandate, allowing the mandate to stay in place.
Judge Tonya Parker issued a temporary injunction Wednesday on Abbott’s order that public entities such as cities, counties and schools can’t issue mask requirements or mandates. The injunction allows Jenkins’ mask order — and the mask requirements of local school districts — to continue, for now.
Parker in her ruling said that Jenkins has shown that Dallas County residents “will suffer probable imminent and irreparable injury through County Judge Jenkins being precluded from exercising his authority” to require masks in public.
The judge noted that the highly transmissible delta variant threatens to overwhelm the healthcare system and has increased hospitalizations and death in Dallas County.
“Each of these bases for probable imminent and irreparable injury independently supports the issuance of the requested temporary injunction,” the ruling said.
The temporary injunction will return Jenkins to “the position he was in” before Abbott’s executive order that barred face mask requirements, the ruling said.
Parker set a hearing for Jan. 10 to review the temporary injunction, though attorneys for the state could file an appeal to Parker’s ruling sooner than that.
See here for the background. A copy of the ruling is here, and you can see Judge Jenkins doing a media call about this here. This will be appealed, of course – one presumes that Paxton and Abbott have learned their lesson and will go through the appellate courts first – and we’ll see how long that takes. It may be that at the least SCOTx is less inclined to grant emergency relief. We’ll know when it gets to them. For now, a win for the good guys.
On a related note, Harris County Attorney Christian Menefee sent out an interesting press release that notes some differences between what Ken Paxton says in public about mask mandate bans and what he’s been saying in court about them.
In GA-38, the Governor banned school districts and local officials from mandating masks, and stated local officials who issue such safety measures would be subject to a “fine up to $1,000.” In response to recent mask mandates imposed by local officials, Attorney General Ken Paxton has stated publicly—and repeatedly—that his office will enforce Governor Abbott’s mask mandate ban. He and Governor Abbott joined together in stating that “any school district, public university, or local government official that decides to defy [the Governor’s mask mandate ban] will be taken to court.”[1] His office has compiled a list of “government entities unlawfully imposing mask mandates,” designed to intimidate those entities into compliance.[2] He has sent letters to many on that list, threatening them with enforcement.[3] He has tweeted several times he intends to sue these entities, most recently saying “I will defend TX Law & sue every entity that violates it. We will win!”[4]
Despite these public statements, the Attorney General admitted to the courts hearing the lawsuits brought by local officials and school districts that his office does not and cannot enforce GA-38, nor can he seek the $1,000 fine provided in the order. His office has stated plainly that “[n]either Governor Abbott nor Attorney General Paxton will be enforcing GA-38.”[5] Instead, the Attorney General acknowledges that only local district attorneys can enforce GA-38—he has claimed that entities like Harris County, other counties/cities, and certain independent school districts cannot sue the Governor and the Attorney General because they have “alleged no credible threat of prosecution by local district attorneys, who would be the ones enforcing GA-38.”[6]
Menefee added: “I presume the Attorney General is telling the truth in his court filings. He should be telling everyone else the same thing and letting local governments and school districts continue doing what they can to stop the spread of COVID-19, especially among our children.”
Go view the document to see the footnotes; the last two refer to the AG’s own filings in the cases involving Harris County and others. I mean, it’s not like anyone should have expected the truth from Ken Paxton, but it’s still bracing to see it laid out like that.
One would presume the same applies to vaccine mandates, since that’s part of the same GA-38, then?
23 days and counting…
Kudos to Kuff for linking the actual order signed by Judge Parker. Consultation of original documents would help cut down on the numerous errors in the reporting by the media. Here are a few comments.
Re: “Parker set a hearing for Jan. 10 to review the temporary injunction, though attorneys for the state could file an appeal to Parker’s ruling sooner than that.”
COMMENT: This is not a hearing to “review” the temporary injunction (TI), but a trial date for the case. In the interim, a review of the TI may be had on interlocutory appeal. A temporary injunction order isn’t a definitive ruling on the merits of the underlying claim or claims (though “likely merits” is an element).
And it must include a date for trial. See RULE 683. FORM AND SCOPE OF INJUNCTION OR RESTRAINING ORDER (“Every order granting a temporary injunction shall include an order setting the cause for trial on the merits with respect to the ultimate relief sought. The appeal of a temporary injunction shall constitute no cause for delay of the trial.”).
That doesn’t mean the case can’t be over before that trial date, however.
The Abbott-AG Alliance has already filed a motion to dismiss Jenkin’s case against Abbott (plea to the jurisdiction), which remains pending in the trial court, as stated in the bottom portion of the temporary injunction order signed by Judge Parker.
A temporary injunction is immediately appealable. It’s done by filing a notice of appeal (here probably labeled a notice of accelerated interlocutory appeal) with the trial court clerk, who will then forward it with relevant case information to the appellate court in whose appellate district the trial court is located. That’s the Fifth Court of Appeals (Dallas) here.
This has already happened with the two cases involving the City of San Antonio and Bexar County (together) and Fort Bend County (county only). In the latter case, the AG’s plea to the jurisdiction has already been denied too, and he is appealing both orders.
NEXT STEP: ACCELERATED APPEAL OF TEMPORARY INJUNCTION
The AG asserts that the filing of the notice of interlocutory appeal on behalf of Governor Abbott has the legal effect of immediately staying (“superseding”) the appealed order. That’s why the plaintiffs/appellees are filing rule 29.3 motions asking the court of appeals to reinstate the trial court’s temporary injunction while the appeal is pending, using their own authority to make temporary orders. The San Antonio Court of Appeals has already granted such a rule 29.3 motion, which Abbott’s litigation team is challenging with a petition for writ of mandamus in the SCOTX. See Tex 21-0720.
The First Court of Appeals in Houston has asked Abbott/AG to file a response to such a motion by Fort Bend County by noon today. See docket for 01-21-00453-CV.
Re: “Judge Tonya Parker issued a temporary injunction Wednesday on Abbott’s order that public entities such as cities, counties and schools can’t issue mask requirements or mandates.”
COMMENT: The description of Abbott’s order is not incorrect, but this is nevertheless misleading because the order signed by Judge Parker doesn’t reach beyond Dallas County.
The party in whose favor the temporary injunction was granted is the County Judge of Dallas County and the people subject to this jurisdiction (Dallas County). Unlike the TRO previously, the temporary injunction is limited in its protective effect to that county. Nor does it expressly mention school districts (though Jenkins’ order does).
SCHOOL DISTRICTS MAKE DIFFERENT LEGAL ARGUMENTS
Note that school districts assert that they have independent authority to impose mask mandates on students and staff based on the Texas Education Code and the Texas Constitution. See joint response of some of them in Tex. 21-0701.
Additionally, at least two school districts, including Fort Bend ISD, are arguing in an amicus brief filed in Tex. 21-0720 that disease control orders issued by a local health authority based on the Health & Safety Code do not bind them.
In the Dallas case, however, the legal basis of Jenkins’ masking order is his authority as county disaster manager under the Texas Disaster Act following the declaration of a local disaster. The masking mandate County Judge Jenkins issued (after he obtained the TRO) also applies to businesses, not just local government facilities.
The order is here: https://www.dallascounty.org/covid-19/resources-business.php
In Jenkins v. Abbott, both sides in the state-local tug-of-war rely on the Texas Disaster Act for legal authority. In the other cases, the plaintiffs assert that they have legal authority from a source outside the Texas Disaster Act, that their ability to impose public health measures does not depend on the declaration of a statewide or local disaster, and that the Disaster Act does not give the Governor authority to suspend these other statutes that they rely on to protect their population and conserve health care resources. In GA-38, however, the Governor expressly purports to do just that. This issue of suspending laws is the crux of both the constitutional and the ultra-vires arguments against the Governor. The Texas constitution provides that only the Legislature has the power to suspend laws.
The City of El Paso is most adamant about the alternative basis of its authority in its filings, and its home-rule status. This is hardly surprising because the State v. El Paso County case (on which the Abbott-AG Alliance heavily relies as caselaw authority in all of its briefing) would otherwise constitute adverse binding precedent in their appellate district. See State v. El Paso County, 618 S.W.3d 812 (Tex. App.—El Paso 2020, no pet.). That case stands for the proposition that under the Disaster Act, the Governor’s emergency order trumps a more restrictive local emergency order.
The TRO granted by a local county court in City of El Paso v. Abbott is being challenged by mandamus under case number 08-21-00140-CV and is currently under submission. See docket for No. 08-21-00140-CV. The judge who penned the majority opinion in State v. El Paso still sits on that three-member appellate court having lost his election bid in 2020. He was promptly reappointed by Greg Abbott promptly thereafter.
Meanwhile, Abbott’s Court at work …
IN THE SUPREME COURT OF TEXAS
NO. 21-0720
IN RE GREG ABBOTT, IN HIS OFFICIAL CAPACITY AS GOVERNOR OF THE
STATE OF TEXAS
ON PETITION FOR WRIT OF MANDAMUS
ORDERED:
1. Relator’s emergency motion for temporary relief, filed August 23, 2021, is granted. The order on Appellees’ Rule 29.3 Emergency Motion for Temporary Order to Maintain Temporary Injunction in Effect Pending Disposition of Interlocutory Appeal, filed August 17, 2021, in Cause No. 04-21-00342-CV, styled Greg Abbott, in his official capacity as Governor of Texas v. City of San Antonio and County of Bexar, in the Court of Appeals for the Fourth Judicial District, dated August 19, 2021, is stayed pending further order of this Court.
2. As we previously held in staying the trial court’s temporary restraining
order in the underlying case, the court of appeals’ order alters the status quo preceding this controversy, and its effect is therefore stayed pending that court’s decision on the merits of the appeal. See In re Newton, 146 S.W.3d 648, 651 (Tex. 2004).
This case, and others like it, are not about whether people should wear masks or whether the government should make them do it. Rather, these cases ask courts to determine which government officials have the legal authority to decide what the government’s position on such questions will be. The status quo, for many months, has been gubernatorial oversight of such decisions at both the state and local levels. That status quo should remain in place while the court of appeals, and potentially this Court, examine the parties’ merits arguments to determine whether plaintiffs have demonstrated a probable right to the relief sought.
3. The petition for writ of mandamus remains pending before this Court.
Done at the City of Austin, this Thursday, August 26, 2021.
BLAKE A. HAWTHORNE, CLERK
SUPREME COURT OF TEXAS
BY CLAUDIA JENKS, CHIEF DEPUTY CLERK
—
Instacomment: This undoes the temporary order entered by the Fourth Court of Appeals and therefore reinstates the automatic stay (supersedeas) allegedly triggered by the Abbott-AG Alliance’s mere filing of their notice of interlocutory appeal.
In short, nothing is resolved. We still don’t know whether GA-38 is valid or void.
The bar against enforcement (in the San Antonio/Bexar County case) has once again been removed.
This should mean that all the kids HISD and other lawless districts either sent home or placed in ISS should be reinstated, yes? Seems like there ought to be a pretty decent class action lawsuit against the offending districts, not just by the kids who were booted or locked down, but also by the kids who were illegally intimidated into wearing the masks, which violates the state’s own law on punishing students. Administrators acted under color of law to deprive the kids of their civil rights.
https://www.lawserver.com/law/state/texas/tx-codes/texas_education_code_37-0023
Texas Education Code 37.0023 – Prohibited Aversive Techniques
(7) impairs the student’s breathing, including any procedure that involves:
(A) applying pressure to the student’s torso or neck; or
(B) obstructing the student’s airway, including placing an object in, on, or over the student’s mouth or nose or placing a bag, cover, or mask over the student’s face;
Oh give it a rest with the ‘masks are suffocating our children’ nonsense.
C.L.:
OK, how about this chestnut, from the same code. Remember, these things are specifically proscribed by Texas law:
(5) ridicules or demeans the student in a manner that adversely affects or endangers the learning or mental health of the student or constitutes verbal abuse;
The act of an administrator using color of law to threaten, cajole, and otherwise used perceived threat of expulsion, ISS, or other disciplinary action to compel otherwise unwilling students to put on a face mask against their will is nothing, if not demeaning, and endangering learning and student’s mental health. It’s abuse, C.L.
WARPED NOTIONS OF FREEDOOM
Re: “punishing students”
An across-the-board masking requirement as applied to pupils is not a punishment, but a public health measure, and – in this context – imposed in loco parentis mode, for the benefit of all the little charges. Nobody is being singled out.
Therefore, no prohibited “aversive technique”.
As we have seen, it can also be imposed as part of a dress code, which presumably requires other bodily orifices to be covered likewise. No personal freedom issues there. No parental opt-outs for good-faith Adam & Eve nudists either.
And while we are at it, should we rise up and overthrow Galveston beach patrol if they don’t let us view the latest crop of AIA sand castles in the nude?
Come and get us?
Fight them officers with spades in lieu of pitch forks – perhaps throw the Golden and Silver Buckets at them – if they won’t let us walk by the castles as God has made us. Or loving parents, horny pair of old-style heteros, less biblically speaking.
What a headscratcher of an argument. With civilization comes clothing.
If you can wear pants, or at least panties, or a tanga on the beach, why is it too much to ask to cover your mouth too, especially when bad things might be coming out of it?
Call in ingress/egress control if you want be legalistic.
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