EXPLAINER: Texas mask battle looks to courts for resolution

Students and parents gather outside the Governor's Mansion to urge Gov. Greg Abbott to drop his opposition to public school mask mandates, Monday, Aug. 16, 2021, in Austin, Texas. The Texas Supreme Court has blocked mask mandates ordered by two of the nation’s largest counties that defied Republican Gov. Greg Abbott as COVID-19 cases surge. (AP Photo/Eric Gay) (Eric Gay, Copyright 2021 The Associated Press. All rights reserved)

HOUSTON – The legal battle over whether Texas communities can require students and others to wear masks in response to the current surge in COVID-19 cases remains entangled in a series of lawsuits, orders and appeals.

Ten counties and cities and 52 school districts or systems around the state have imposed mask mandates in defiance of Gov. Greg Abbott’s executive order banning such measures.

Abbott has argued a law known as the Texas Disaster Act gives him broad power in deciding how best to respond to emergency situations, including whether to ban mask mandates during a pandemic. The counties, cities and school districts say the act does not give Abbott unlimited power.

At least seven lawsuits by cities, counties and school districts have been filed against Abbott. With the Texas Supreme Court not yet having issued a final ruling on the matter, the mask mandates will likely remain in place until such a decision is made, according to legal experts.


What authority does the governor have under the Texas Disaster Act?

Abbott and his attorneys have said the Texas Disaster Act grants the governor wide emergency powers in order to protect citizens in a time of crisis.

The issue is not whether mask mandates are well advised or if parents have the right to decide if their children will wear masks, Benjamin Dower, a lawyer with the Texas Attorney General’s Office, said during a court hearing Thursday on Fort Bend County’s lawsuit.

“It’s a simple question of who gets to decide and under the Texas Constitution ... that authority is vested in the governor of the state of Texas,” Dower said.

Cities, counties and school districts suing Abbott say the governor has exceeded his authority by preventing local jurisdictions from taking action to help stop the spread of COVID-19.

San Antonio “can’t fight this pandemic with one hand tied behind its back and unfortunately the governor has tied one of the city’s hands behind its back by taking away this important tool of mask mandates in this critical time,” Bill Christian, an attorney representing San Antonio in its lawsuit, said during a court hearing Monday.

Kellen Zale, a law professor with the University of Houston Law Center, said she believes those suing Abbott “have a pretty strong legal argument” as the Texas Disaster Act doesn’t give Abbott unlimited power.


What legal action has been taken?

Bexar, Dallas, Fort Bend and Harris counties — some of the state’s most populous — along with San Antonio, at least eight school districts and the Southern Center for Child Advocacy, an Austin-based nonprofit, have sued Abbott in state court. A federal lawsuit was filed by Disability Rights Texas, an advocacy organization.

This week, Bexar and Fort Bend counties and San Antonio won temporary injunctions, which will let them have mask mandates until their lawsuits go to trial. Dallas and Harris counties, the eight school districts and the Southern Center for Child Advocacy have won temporary restraining orders against Abbott and were set to have court hearings next week on their requests for temporary injunctions. The attorney general’s office was expected to appeal any rulings not in its favor ahead of any trial date.

The Texas Supreme Court on Sunday had initially struck down temporary restraining orders that had let some of the mask mandates stay in place. But in turning down on Thursday a request by Texas Attorney General Ken Paxton to prematurely take action against other mask mandates, it has seemed to signal it won’t rush through the process, said Dale Carpenter, a law professor with the Southern Methodist University School of Law in Dallas.

This is a win for those suing Abbott as it allows them for now to keep their mask mandates in place and help slow the recent surge of cases, Carpenter said.


When will there be a final resolution?

It’s unclear if the Texas Supreme Court will wait to make a ruling until most or all of the lawsuits go through the appellate process regarding any temporary orders that have been issued or if it will use the first case that makes it through that process to issue a decision that’s applicable across the board, Carpenter said. It could take a couple of weeks to get to this point.

The perception among some legal experts is that the Texas Supreme Court, which is conservative and made up of all GOP justices, will ultimately rule in favor of Abbott, also a Republican.

“It’s an understandable perception,” Zale said. “But I guess I have a good faith view of the judges taking their roles seriously” and reviewing the underlying issues in the case.


Follow Juan A. Lozano on Twitter: https://twitter.com/juanlozano70