BY ALLYSON WALLER and MATTHEW WATKINS
The Texas Tribune
Two separate state district judges granted local authorities in Dallas and Bexar counties temporary power to issue mask mandates on Tuesday, in major rebukes to Gov. Greg Abbott’s efforts to ban local mask orders across Texas.
The leaders of the two counties had both asked the court to grant them the authority as COVID-19 cases and hospitalizations surge statewide, and lawyers for both jurisdictions made their cases in simultaneous hearings Tuesday afternoon. In San Antonio, Judge Antonia Arteaga granted the local officials a temporary restraining order blocking Abbott’s action. Hours later, Judge Tonya Parker did the same in Dallas.
Soon after, Dr. Junda Woo, medical director of San Antonio’s Metropolitan Health District, and San Antonio City Manager Erik Walsh announced that face masks will be required inside Bexar County public schools and San Antonio city facilities.
“The pandemic has shown us the importance of in-person learning, but with the highly contagious delta variant now widespread in San Antonio, schools need every tool at their disposal to stay open safely,” Woo said in a statement. “Those tools include universal masking.”
Dallas County Judge Clay Jenkins, meanwhile, said on Twitter that he would “get feedback from health, education and business leaders tonight and in the morning with the anticipation of issuing an emergency order tomorrow.”
As of Aug. 10, there are 2.7 million confirmed cases in 254 counties. The average number of cases reported over the past seven days shows how the situation has changed over time by de-emphasizing daily swings. The number of new cases reported drops on weekends, when labs are less likely to report new data to the state.
Both judges cited public health needs in their decisions. Arteaga said she did not take her decision lightly. She cited the start of the school year and public guidance given by Woo concerning the need for masks in public schools as the highly contagious delta variant contributes to a surge in coronavirus cases across the state. Parker, meanwhile, wrote that “Judge Jenkins cannot be precluded from implementing the mitigation strategies he believes are sound, reliable, and backed by scientific evidence.”
“The citizens of Dallas County have and will continue to be damaged and injured by Gov. Abbott’s conduct,” Parker’s order said.
Both decisions are temporary. Arteaga’s is pending a hearing on Monday. Parker’s decision will remain in place until Aug. 24, also pending a hearing.
“For now, we’re going to take a victory lap, we’re very happy with the result that we got today,” said Joe Gonzales, Bexar County District Attorney, during a news conference on Tuesday.
The San Antonio officials’ directives also stated that parents should be notified if a student has been in close contact with an individual on campus who tested positive for COVID-19. They implore vaccinated and unvaccinated individuals to take appropriate quarantine measures following the contact.
In a statement after the San Antonio decision, Abbott’s office said they believed the city and county’s challenge to Abbott’s order will not stand.
“Governor Abbott’s resolve to protect the rights and freedoms of all Texans has not wavered,” said Renae Eze, a spokeswoman for Abbott’s office. “There have been dozens of legal challenges to the Governor’s executive orders – all of which have been upheld in the end. We expect a similar outcome when the San Antonio trial court’s decision is reviewed by the appellate courts.”
The rulings came shortly after the city of San Antonio and Bexar County sued Abbott on Tuesday morning over his May executive order blocking local officials and school districts from enforcing mask mandates.
City and county officials argued in their lawsuit that Abbott’s order gets in the way of them requiring masks be worn by city and county employees as well as visitors to city and county facilities.
Jenkins’s filing came on Monday and accused Abbott of threatening lives, exceeding his authority and illegally overruling local officials’ ability to enact measures like mask mandates. Such measures are well within city and county leaders’ powers to fight an “imminent threat to public safety,” Jenkins’ suit says, and Abbott doesn’t have the power to say otherwise.
In a statement made ahead of the ruling, the city of San Antonio said if granted the temporary order it “will immediately issue an order requiring masks in public schools and requiring quarantine if an unvaccinated student is determined to be in close contact with a COVID-19 positive individual.”
Recently, the Texas Education Agency released guidance saying school districts are not required to conduct contact tracing. Despite guidance from TEA and Abbott’s executive order, which pull back preventive measures against the coronavirus, districts from metro areas such as Houston, Dallas and Austin have emphasized they will work to include safety mandates as part of their back-to-school plans. And on Tuesday night, the Fort Worth school district announced it would require masks inside schools, according to the Fort Worth Star-Telegram.
During Tuesday’s Bexar County hearing, William Christian, an attorney representing the city, argued that under the Texas Disaster Act of 1975, Abbott does not have the latitude to override city and county mask mandates.
“We need to impose this mask mandate now – not Monday, not the week after that, now,” Christian said.
Kimberly Gdula, an assistant state attorney general, said the local officials who sued didn’t demonstrate harm.
“They are not asking the court for relief that preserves the status quo,” Gdula said, citing an appeals court’s decision in 2020 that halted El Paso County’s shutdown on nonessential business. Local restaurant owners and Texas Attorney General Ken Paxton sued the county, saying its order went against a state executive order that limited restrictions on business.
U.S. Rep. Joaquin Castro, D-San Antonio, commended local leaders on Tuesday for their actions against Abbott.
“If Gov. Abbott won’t protect San Antonio children, local leaders will do the right thing for our student’s health and safety,” Castro wrote on Twitter.
In Bexar County, almost 50% of residents are fully vaccinated. However, vaccines have not been approved for children under 12 years of age, presenting a worry for officials who say that’s all the more reason why masks are needed in schools. COVID-19 cases have again surged in the state, with hospitalizations reaching levels not seen since February. The state’s positivity rate, which measures how prevalent the virus is in Texas, was at 18.1% as of Sunday, above the 10% threshold that federal guidance identifies as a “red zone” for states.
Ovidia Molina, Texas State Teachers Association president, said in a statement that the ruling was a correct one, with it putting the safety of students, educators and community members first. The organization is also once again calling on Abbott to withdraw his executive order.
“It is important for students and educators to return to the classroom, but they must do so with safety precautions because the pandemic is still dangerous,” Molina said.
Hank Bostwick, Southern Center for Child Advocacy volunteer coordinator, said the ruling is a positive step to taking down the governor’s order. His organization also filed a lawsuit against Abbott on Sunday and will not withdraw it in an effort to keep mounting pressure on Abbott. He called the ruling a win for Texas children and a sign of relief for parents.
“This is excellent,” Bostwick said. “It doesn’t matter who wins in this situation, if one lawsuit works then all of the children of Texas benefit.”
Brian Lopez contributed to this report.
Disclosure: Texas State Teachers Association has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. Find a complete list of them at https://www.texastribune.org/support-us/corporate-sponsors.