Live COVID-19 updates: Attorney General Ken Paxton takes the state's mask mandate ban to the Texas Supreme Court

The St. Johns drive-through COVID-19 testing site off of Interstate 35 in north Austin on Aug. 5, 2021.
The St. Johns drive-through COVID-19 testing site off of Interstate 35 in north Austin on Aug. 5, 2021.

Attorney General Ken Paxton takes mask mandate legal fight to the Texas Supreme Court after appeals courts uphold local rules

The Texas Supreme Court will decide whether the mask mandates school districts have imposed, in defiance of Gov. Greg Abbott, can move forward.

Late Friday night, Attorney General Ken Paxton said in a tweet that he has taken the mask mandate fight to the state Supreme Court, and Harris County Attorney Christian D. Menefee tweeted Saturday that the court will decide the case "on an expedited basis."

This comes after Abbott suffered several defeats Friday afternoon in his bid to overturn local mask mandates after he banned such precautions earlier in the pandemic.

The 4th Court of Appeals in San Antonio tossed out Abbott’s appeal to nix an order by the local health authority in Bexar County mandating mask-wearing in local public schools. Abbott sought to overturn a lower court ruling that allowed the local mandate.

Minutes later, the 5th Court of Appeals in Dallas made an identical ruling in Abbott’s challenge to Dallas County Judge Clay Jenkins’ order mandating masks in public schools, universities and businesses — upholding the mandate there.

Over the past few days, a patchwork of mandates around masks in schools, government buildings and businesses have popped up across the state. Abbott and Attorney General Ken Paxton have vowed to fight local governments that defy the governor's ban. Abbott has adopted a playbook of “personal responsibility” over government intervention in dealing with the pandemic.

Earlier, Friday a state district judge granted Harris County and several Texas school districts temporary permission Friday afternoon to implement mask requirements and other safety measures against COVID-19. But a Tarrant County District judge granted a temporary restraining order blocking Fort Worth Independent School District’s mask mandate after determining it was improper for an unelected school superintendent to determine the policy.

The legal battles over Abbott’s executive order come as school has started or will soon begin in districts across the state at the same time that COVID-19 infections are surging and hospitals are filling up with patients.

U.S. Education Secretary says Texas' mask mandate ban could prevent districts from protecting students

In a letter sent Friday, U.S. Secretary of Education Miguel A. Cardona told Gov. Greg Abbott and Texas Education Commissioner Mike Morath that the federal government stood with local school districts imposing mask mandates meant to stop the spread of COVID-19. The letter was sent as school districts in some of the state’s major cities have defied Abbott’s ban and implemented mask mandates.

“The Department recognizes that several [local education agencies] in your State have already moved to adopt such policies in line with guidance from the CDC for the reopening and operation of school facilities despite the State-level prohibitions,” Cardona wrote. “The Department stands with these dedicated educators who are working to safely reopen schools and maintain safe in-person instruction.”

Cardona emphasized that local school districts have discretion to use federal funds meant to fight the coronavirus “for contact tracing, implementing indoor masking policies, or other policies aligned with CDC guidance.”

Cardona said the federal government was “eager to partner” with Texas officials on the shared goals of protecting students and educators. But he also said his agency was monitoring “whether Texas is meeting all of its Fiscal federal requirements” for the COVID-19 relief funds.

“It’s critical that we do everything in our power to provide a safe environment for our students and staff to thrive,” Cardona said.

COVID-19 hospitalizations are higher than their first-wave peak in summer 2020

Texas reported 11,261 hospitalized patients with confirmed coronavirus infections on Thursday, the latest day hospitalization data is available. This is more than the peak of the first wave of coronavirus cases last summer, when the state reported 10,893 hospitalizations on July 21, 2020. Hospitalizations during the second wave peaked at 14,218 patients on Jan. 11.

Hospital officials say upwards of 95% of COVID-19 patients are unvaccinated, and they will soon be overwhelmed. Dozens of hospitals are out of ICU beds as they struggle with historically low staffing levels, and children’s hospitals are also under siege from RSV.

The availability of ICU beds is another way to measure the severity of this wave of cases. During that 2020 summer surge, the state never had fewer than 850 ICU beds available at any one time; in the winter, the lowest level was 506 available ICU beds. On Thursday, the state had only 323 available ICU beds. Darla Cameron