JudicialLocal NewsAppeals Court Sides With Harris County Over Abbott in Mask Mandate Fight

An Austin-based appeals court has ruled that the governor does not have the authority to preempt local officials’ orders requiring face coverings.
January 6, 2022
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A state appeals court ruled in favor of Harris County in an ongoing legal battle with Governor Greg Abbot over mask mandates on Thursday.

The Texas Third Court of Appeals in Austin upheld a lower court ruling issued last summer by Judge Catherine Mauzy of the 419th Civil District Court that blocked enforcement of Abbott’s ban on mask mandates in Harris County. 

Harris County Judge Lina Hidalgo praised the court’s ruling during a press conference with county attorney Christian Menefee Thursday afternoon.

“We just received a ruling … that reaffirms what we’ve been saying all along; our local health officials do have the authority to put reasonable measures in place to control the spread of COVID-19,” said Hidalgo.

“This is a victory for parents, it’s a victory for children, for schools, for our entire community, but it is just another battle in our fight against COVID-19 from day one.”

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Although Hidalgo has sought to enforce masking orders for county offices and schools, Abbott’s executive order issued last July expressly prohibited local governments or officials from requiring face coverings.

In the opinion written by Justice Chari L. Kelly, the court rejected the argument that the Texas Disaster Act gives the governor “broad authority to preempt local orders.”

Instead, the court notes the Disaster Act specifically designates the governor as “commander in chief of state agencies, boards, and commissions having emergency responsibilities,” but does not mention counties. Therefore, the court concludes that the governor’s authority to act as commander in chief is limited to only specific state agencies.  

Kelly also noted that Texas Health and Safety Code authorizes a county’s commissioners court to adopt orders that are “reasonably necessary to protect the public health,” and that the Disaster Act allows local officials to also declare a state of disaster, but that “nothing in this provision limits the authority that counties and local officials, including county commissioners courts, otherwise possess under the Act in responding to local disasters and public-health crises.”

“In summary, we conclude that the Governor does not possess absolute authority under the Texas Disaster Act to preempt orders issued by local governmental entities or officials that contradict his executive orders,” writes Kelly.

“Today is an important victory for public health but just as important this is an important victory for local government,” said Menefee, who also praised a recent ruling blocking Attorney General Ken Paxton from prosecuting election related crimes. 

While celebrating the ruling, both Hidalgo and Harris County Attorney Christian Menefee acknowledged that the decision would now go to the Supreme Court of Texas for a final decision. 

“I can all but guarantee that this case will be appealed, and I look forward to along with the judge standing alongside school districts across this state, in Dallas County, Bexar County, the city of San Antonio, and litigating this case to a final victory in the Texas Supreme Court,” said Menefee.

“My message to superintendents, my message to leaders at daycare centers, and my message to business leaders is as follows: if you want to be responsible and require masks, continue requiring masks,” said Hidalgo. “Unless the Texas Supreme Court rules against this, and they won’t make a ruling for a while, you’re within your rights to continue with this.”

Hidalgo also warned that she may raise the county’s COVID-19 alert level to “Red,” the highest level, soon if more than 20 percent of Intensive Care Unit (ICU) hospital beds in the county are occupied by COVID positive patients. 

“We’re going to have to learn to live with this virus and we could do that to the extent that we get the vaccine, and we get the booster and that we take common sense measures.”

While the Third Court of Appeals consists of three Democratic justices, the Supreme Court of Texas is composed entirely of Republicans. Several other appellate courts have ruled against Abbott on his mask mandate ban, but last August the state’s highest court sided with Abbott in issuing a stay on local mask mandates.

A federal lawsuit over the governor’s ban for public schools is pending before the Fifth Circuit Court of Appeals.

Data show a less than one percent difference in infection rate between schools with mask mandates in place and those without.

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Holly Hansen

Holly Hansen is a freelance writer living in Harris County. Her former column, “All In Perspective” ran in The Georgetown Advocate, Jarrell Star Ledger, and The Hill Country News, and she has contributed to a variety of Texas digital media outlets. She graduated summa cum laude from the University of Central Florida with a degree in History, and in addition to writing about politics and policy, also writes about faith and culture.