JudicialAppellate Court Says Abbott’s Mask Mandate Ban Exceeds Authority, Partially Relying on Abbott’s Own Writings

Citing an opinion Abbott wrote as a justice in 1997, the Fourth Court of Appeals called his mask mandate ban an excess of his authority.
November 12, 2021
Scoring a win for San Antonio and Bexar County, the Texas Fourth Court of Appeals ruled on November 10 that Governor Greg Abbott’s prohibition on mask mandates exceeds his proper power as governor.

“Because the Governor possesses no inherent authority to suspend statutes under the Texas Constitution and he exceeded the scope of statutory authority granted to him by the Legislature, his actions in issuing Executive Order GA-38 were done without authority,” the opinion reads.

The executive order at the center of the dispute consolidated several of Abbott’s earlier coronavirus-related orders into one. Abbott’s Executive Order GA-38 forbids local governments from requiring masks, ends capacity restrictions for local businesses, and bans government “vaccine passports.”

Abbott had previously barred school districts from requiring masks in May, but San Antonio and Bexar County did not sue over the prohibition until just before the school year began amid a rise in infection rates. In their original petition, the local officials say they seek to secure their mask mandate authority for the purpose of requiring masks in San Antonio schools.

Like some other ongoing lawsuits between school districts and the state, the case initially jumped quickly through the Texas court system. The trial court granted Bexar County officials a temporary restraining order to safeguard the local mask mandate within a day of the original filing. After the trial court signed a temporary injunction order, Abbott appealed to the Fourth Court of Appeals, thus superseding and ending the injunction. Bexar County officials protested, and the Fourth Court of Appeals reinstated the injunction just eleven minutes after Abbott filed his response. The Supreme Court of Texas reversed the appellate court’s order not long thereafter.

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The opinion that the Fourth Court of Appeals released on Wednesday affirms the trial court’s injunction, siding with the local officials and taxing the costs of the appeal against Abbott.

Wednesday’s opinion, written by Chief Justice Rebeca Martinez, rules that the Texas Disaster Act (TDA) does not give Abbott the legal power to end local mask mandates.

The TDA, a swath of Texas Government Code, gives the governor emergency powers in times of catastrophe. However, before COVID-19, the law had almost always been invoked for regional disasters.

“The governor may suspend the provisions of any regulatory statute prescribing the procedures for conduct of state business or the orders or rules of a state agency if strict compliance with the provisions, orders, or rules would in any way prevent, hinder, or delay necessary action in coping with a disaster,” the TDA reads.

Martinez drew a distinction between local mask mandates and the “regulatory statute” described in the TDA.

“We hold Section 418.016(a) does not provide the Governor with the authority he claims to suspend statutes that concern local control over public health matters or to prohibit local restrictions on face coverings. First, the statutes the Governor purports to suspend are not ‘regulatory statutes,’ subject to suspension under the Act,” Martinez wrote.

Martinez notes that the TDA specifically names local authorities elsewhere in the text. Therefore, it should be assumed that their absence from the part that gives Abbott the authority to suspend law is intentional.

Her ruling partly relies on a dissenting opinion Abbott wrote during his time as a justice on the Supreme Court of Texas in 1997.

“We must not add words to the statute that are not there, and we must not ignore the words the Legislature has chosen, either, particularly in situations where we are being urged to read grants of authority from statutory silence,” Abbott wrote in Newman v. Obersteller.

A common metaphor for this vein of interpretation is the “elephant in a mousehole” analogy. Under Martinez’s interpretation, courts should not infer broad authority for the governor from narrow absences between the lines of the law.

“If the Legislature had intended Section 418.016(a) to reach the ordinances and business of local governments, Section 418.016(a) would have stated an application to ‘political subdivision[s]’ or ‘local governmental entit[ies]’, which are terms defined in the Act,” she specifies.

“We cannot say that the Legislature intended section 418.016(a) to apply to matters of local control over public health without mentioning this possibility.”


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Isaiah Mitchell

Isaiah Mitchell is a reporter for The Texan, a Texas native, and a huge Allman Brothers fan. He graduated cum laude from Trinity University in 2020 with a degree in English. Isaiah loves playing music and football with his family.