San Antonio Mayor Ron Nirenberg and Bexar County Judge Nelson Wolff joined forces in a lawsuit yesterday over Abbott’s recent executive order GA-38, which forbids mask mandates at every level of government except for state-run living centers, hospitals, and jails. The two governments are seeking a declaratory judgment that the order violates the Texas Disaster Act. Arguing that required masks are a necessary safety measure in public schools, they won a temporary restraining order while they also seek a more lasting injunction to end the prohibition on mask mandates.
“The Governor’s power to suspend laws during a disaster under the statute does not extend to the public health laws that allow the City and County to impose masking requirements on its own employees and members of the public who visit City and County-owned facilities,” the lawsuit reads.
“The City and County’s ability to set the conditions of the workplace of their own employees is not state business.”
In response to the lawsuit, Abbott’s office said local governments must find a way to respond to the pandemic without coercion.
“Governor Abbott has been clear that the time for mask mandates is over; now is the time for personal responsibility. Parents and guardians have the right to decide whether their child will wear a mask or not, just as with any other decision in their child’s life,” an official statement reads.
The temporary restraining order allows the City of San Antonio and Bexar County to institute mask mandates for now.
San Antonio and Bexar County are not alone in disregarding Abbott’s order.
The City of Houston has reinstated a mask rule for city employees, and Harris County is expected to take Abbott to court. Austin ISD, Fort Worth ISD, Spring ISD, Houston ISD, and Dallas ISD will require masks for students, staff, and visitors. Dallas County Judge Clay Jenkins, an early and aggressive proponent of local mask mandates, also took to court in search of a temporary restraining order to stop Abbott’s proclamation. Echoing the Bexar County order, a judge on Friday upheld Jenkins’ power to require masks at commissioners’ court meetings.
Especially with regards to coronavirus response, this clash between local officials and the state is not new in Texas. Since Abbott’s order GA-38 only solidified previous orders that ended local mask mandates, it merely refreshed an ongoing struggle between Texas top brass and usually Democratic local politicians. For example, after Abbott first ended local mask mandates in March, the City of Austin and Travis County continued to enforce their local mask rules.
Ironically, Democrats Nirenberg and Wolff claim that Abbott’s ability to ban mask mandates under the TDA counts as suspending law, which would violate the Separation of Powers clause of the Texas Constitution.
“The legislature’s grant of authority to the Governor to suspend laws is unconstitutional, including the suspension of any laws that authorize the City or County to impose a masking requirement,” the lawsuit reads.
The TDA enabled local officials to act as disaster authorities in the first place, and Abbott’s implementation of it drew criticism from conservative Republicans like state Rep. Matt Schaefer (R-Tyler), who made the same constitutional claims when mask mandates and local shutdowns were being imposed instead of lifted.
“The Governor cannot create a crime, and then also enforce the crime. That is a clear violation of separation of powers,” Schaefer wrote in a press release, voicing concerns of many lawmakers in both parties.
Editor’s Note: A previous version of this article incorrectly stated the day that a Dallas judge affirmed Jenkins’ mask mandate.
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