Texas Gov. Greg Abbott can’t enforce mask mandate ban, he argues in court

A student wearing a mask and face shield eats lunch at Blanco Vista Elementary School in San Marcos on Aug. 23, 2021.
A student wearing a mask and face shield eats lunch at Blanco Vista Elementary School in San Marcos on Aug. 23, 2021.

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Gov. Greg Abbott has been embroiled in court battles with Texas cities, counties and public schools that have defied his ban on local mask mandates. But in the urban areas where those battles are being waged, the local officials Abbott needs to enforce his ban aren’t playing ball.

Even as Abbott and Attorney General Ken Paxton vow to punish local government and school district officials who flout the governor’s executive order, they conceded in court documents that they actually have no power to enforce the ban.

“Neither Governor Abbott nor Attorney General Paxton will be enforcing” the order, Paxton argued in a Monday court filing in Dallas.

Since the pandemic began, Abbott has issued a flurry of executive orders, the most prominent of which have limited cities and counties from enacting measures intended to slow the spread of COVID-19, like mask mandates and occupancy restrictions on businesses like restaurants and retailers.

Cities, counties and school districts in the state’s major urban areas have responded with a flood of lawsuits challenging Abbott’s executive order prohibiting them from enacting mask mandates amid a surge of COVID-19 cases and hospitalizations.

In a bid to convince judges to toss out those legal challenges, Abbott and Paxton claim in recent court filings that they’re not the right target because it’s up to local prosecutors to enforce Abbott’s orders.

“The Governor’s executive orders, having the full force and effect of law, are enforceable by state and local law enforcement,” spokesperson Renae Eze said in a statement.

But in the state’s urban counties, those district attorneys are mostly Democrats who are unlikely to sue fellow local officials for violating Abbott’s order banning mask mandates.

“[Abbott is] saying, ‘Well, it’s not enforceable, only the DA can do it,” said Randall Erben, an adjunct law professor at the University of Texas at Austin. “Well, the DAs in Travis, Harris and Dallas are not going to prosecute anybody for violation of the executive order.”

In the state’s most populous county, Harris County District Attorney Kim Ogg doesn’t anticipate enforcing Abbott’s executive order because it’s not a criminal matter, a spokesperson said.

Abbott’s legal argument — tucked into court documents in at least five lawsuits challenging his order — has prompted some lawyers representing local governments and public schools to call out the governor and Paxton for saying one thing in public and another in the courtroom.

By Paxton’s count, 69 school districts and 10 counties have adopted mask orders. He has threatened several school districts with lawsuits if they don’t drop them.

“In public, the Attorney General has said he can enforce [Abbott’s executive order],” David Campbell, a lawyer representing several school districts with mask mandates, said in an email. “But in some court filings, the Attorney General has said the opposite. So, which is it?”

To Harris County Attorney Christian Menefee, Abbott and Paxton are “creating confusion for the school districts, superintendents, and local officials who are trying to keep students and residents safe as the Delta variant worsens.”

“If the Governor and the Attorney General cannot enforce the Governor’s mask mandate ban, the folks making tough decisions for our schools and communities have the right to know that,” Menefee said in a statement this week. “They shouldn’t have to fear retribution for doing the right thing — especially when our state leaders quietly concede that their threats are nothing but bluster.”

Paxton’s office did not respond to requests for comment.

Abbott and Paxton have come under intense political pressure from their right flank to clamp down on local officials who flout Abbott’s ban on mask orders.

Both benefit from taking a forceful public posture on mask mandates even if they’re telling the courts they can do little to enforce them other than suing counties and school districts, said Brandon Rottinghaus, a political science professor at the University of Houston.

“Publicly, they want their fingerprints all over it, they want to claim credit,” Rottinghaus said. “But in a different setting, they want to be able to quietly maneuver around it, or to be able to use every sort of legal trick they can to not have to face those consequences.”

Abbott’s order, and local officials’ lawsuits challenging it, have created a confusing morass of legal maneuvers and decisions. Often, a local mask order will win favor with lower court judges, only to be struck down — at least temporarily — by the state Supreme Court. Then, a lower court will reinstate the mandate — and the cycle starts again.

After the Supreme Court on Thursday temporarily blocked Bexar County’s order mandating masks in public schools, District Attorney Joe Gonzales said he won’t prosecute school districts that adopt mask mandates anyway — pointing to the fact that the Texas Education Agency isn’t enforcing Abbott’s ban.

“I understand that this litigation has been confusing for public officials, administrators and, most importantly, the public,” Gonzales said in a statement. “Rest assured that we are working tirelessly to protect those who cannot protect themselves.”

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