Today, Texas Attorney General Ken Paxton published new legal guidance in answer to questions about whether local public health officials have the authority to order school closures.
Paxton’s publication follows a series of orders issued by local public health authorities around the state prohibiting in-person instruction and other school-related activities due to COVID-19 concerns.
Last week, appointees Dr. Umair Shah of the Harris County Health Authority and Dr. David Persse of the Houston Health Authority were the latest to issue such orders, citing concerns over high COVID-19 positivity rates in the community.
The attorney general’s guidance, written in response to a request from Mayor Doug Svien of Stephenville, asserts that local public health officials have the power to quarantine property, but “nothing in the law gives health authorities the power to indiscriminately close schools- public or private[.]”
Paxton cites statute allowing for local health authorities to “quarantine property only if there is “reasonable cause to believe that property…is or may be infected or contaminated with a communicable disease[.]”
In a press release summarizing his opinion, Paxton wrote that “school officials, both public and private, are the appropriate ones to decide whether, when, and how to open school.”
“Education of our children is an essential Texas value and there is no current statewide order prohibiting any school from opening,” said Paxton. “While local health authorities may possess some authority to close schools in limited circumstances, they may not issue blanket orders closing all schools on a purely preventative basis. That decision rightfully remains with school system leaders.”
The Harris County orders applied to all county public and non-religious private schools through September 8, and further prohibited any extra-curricular activities on or off-campus, including sports and academic competitions.
Yesterday, Texas House Public Education Committee Chair Representative Dan Huberty (R-Houston) penned an op-ed explaining that he had been in communication with Harris County Judge Lina Hidalgo prior to the issuance of orders. Despite his requests for a delay while conferring with local school districts, Huberty says that he was ignored.
Huberty also asserts that Texas Education Agency guidance instructs school districts to work in conjunction with the Department of State Health Services, local health authorities, staff, teachers, parents, and elected school boards to craft appropriate plans.
“Judge Hidalgo’s order contradicts the state guidance by requiring every school district in Harris County to present a plan to the County and City for official approval to reopen,” wrote Huberty.
The Center for Disease Control has also issued guidance stressing the importance of reopening the nation’s schools.
News of the attorney general’s guidance broke during a public meeting of the Harris County Commissioners Court where speakers joined to voice opposition and support for the school closure orders. Most of those participating were in favor of schools remaining closed and included several representatives from the state and local teacher unions.
Commissioner Jack Cagle (R-Pct. 4) asked whether the letter consisted of an official opinion, or was merely an advisory. First Assistant County Attorney Robert Soard said they would be examining the issue to determine how to proceed.
Attorney general opinions are defined as a “written interpretation of existing law.”
A copy of Chairman Huberty’s op-ed can be found below.
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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.