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The School Mask Court Battle May Be A Loser For Gov. Abbott Regardless Of Outcome

Masked up students, Aug. 10, 2021.
Lannis Waters/USA TODAY NETWORK via Reuters Co
Masked up students, Aug. 10, 2021.

Hospitals across the state are running out of intensive care beds as Texas is slammed with a rise in coronavirus cases. At the same time, Gov. Greg Abbott is fighting local governments over their attempts to mandate masks in schools.

San Antonio, Bexar County and Dallas County have all successfully sued the governor to implement temporary mask bans while the cases go to court. School districts across the state have announced their intent to defy the governor by mandating protective masks. Abbott had banned mask mandates as part of an executive order — one that local governments have argued is outside the scope of his authority under Texas code.

“The path forward relies on personal responsibility — not government mandates,” Abbott said in a statement, repeating the line he used in early March when cases had dropped and there were at times zero deaths attributed to the disease.

The governor and Attorney General Ken Paxton are trying to fast-track their appeal of the mask mandate in Dallas County to the Texas Supreme Court, a Republican-led body that often sides with Republican leaders.

Gov. Greg Abbott and other Texas GOP leaders continue to resist a push by Democrats to expand mail-in voting.
Ricardo B. Brazziell | Pool via Austin American-Statesman

But the single victory in Dallas doesn’t put the genie of local rebellion back in the bottle. Some of the state’s largest school districts and its biggest urban centers are actively fighting to regain some of the emergency powers they once had, that the governor has amassed singularly under a 40-year-old state statute designed for natural disasters. After 17 months, local officials have had enough.

“There is a groundswell,” said Bexar County Judge Nelson Wolff, at a press conference celebrating their victory in court. “And whether that will lead to more losses, whether that will lead to the governor finally changing his mind, I don't know. But I do know, at least we've got a victory here.”

At least for now.

The temporary restraining order is only in effect until Monday — the first day of classes in many local school districts — and the day there will be another hearing in San Antonio’s case.

Bexar County Judge Nelson Wolff, Left, and San Antonio Mayor Ron Nirenberg, right, give comments Tuesday afternoon, after their joint lawsuit is successful in getting temporary relief from Gov. Abbott order.
Paul Flahive | Texas Public Radio
Bexar County Judge Nelson Wolff, Left, and San Antonio Mayor Ron Nirenberg, right, give comments Tuesday afternoon, after their joint lawsuit is successful in getting temporary relief from Gov. Abbott order.

The results of which all boil down to what the Texas Disaster Act — passed in 1975 — saw as the governor's powers in an emergency.

“Texas Disaster Act does say that the governor is allowed to suspend the laws, but there are laws that are supposed to be dealing with a state agency. And so their argument is, ‘Well we're not a state agency. We're a county,'” said Charles Rhodes, a professor of state and federal constitutional law at South Texas College of Law Houston.

Rhodes said there is a lot of nitpicking about the language of the law and around additional provisions for county powers in the public health sphere.

“I think the local counties and the cities and other political subdivisions such as school districts will be successful in some of this lower court litigation, as they had already had been, I just find it less likely that they're going to have such a receptive audience at the Texas Supreme Court,” said Rhodes.

While the Texas Disaster Act likely did not conceive of a disaster lasting this long, it still clearly grants the governor wide latitude, he said. Also the legislature had the opportunity to curtail the governor’s powers in the last session, but didn’t. And the nature of the disaster law is to coordinate and offer a uniform response to disasters that extend beyond counties.

“The Texas Supreme Court is not going to decide as a policy matter whether what he's doing is the right policy or not. It's only going to decide whether he has the authority to do what he's doing, based on the statutes that have been enacted by the legislature,” he said.

San Antonio’s lawsuit also challenges other aspects, like the idea that only the legislature has the power to suspend laws, a concept dating back to the 1600s. While interesting, it may not be enough.

But the lawsuits being filed are already a victory in many ways because it loudly links the governor with policies that public health authorities have said endanger kids' lives.

“Even if the counties and the cities are unsuccessful in court, which I think they will be,” said Rhodes. “There was a larger goal here, of trying to get public opinion on their side, with respect to the necessity of protecting the health and the safety and the welfare of our children.”

It is clear in the Dallas and San Antonio suits this was about getting back emergency powers taken by the governor, writ large. But the focus and the proximity to the first day of school inherently link it to the lives of children — especially as the state has seen pediatric cases of the coronavirus triple. San Antonio and Bexar County used 29 references to schools in their lawsuit. And when they won temporary relief, passed a mask mandate only for K-12 schools.

The Lincoln Project — activists of moderate conservatism — have leapt on the battles, releasing a video of a child on life support overlaid with images of Florida Gov. Ron DeSantis and Gov. Abbott.

Abbott will compete in next year’s gubernatorial primary against two far-right candidates. He has — on a number of issues in recent years — increasingly played to a Trump GOP. Many of those voters remember Abbott advocating for limits on customer capacity and mask mandates last year, positions they were very unhappy with. So now, in the midst of a blue and moderate Republican rebellion he is in a balancing act for next year’s primary, said Cal Jillson, professor of Texas politics at Southern Methodist University.

“And he doesn't want to lose the suburbs and the moderate Republican voters the way Trump did,” said Jillson.

On school masks, he may have found a big loser.

“He's got a real problem,” said Jillson. “If the coronavirus continues — the delta variant continues — to wreak havoc, he’ll have little choice but to back off those anti-mask mandates.”

If he doesn’t, Jillson said, he risks appearing as putting his political aspirations above the health of kids.

Five weeks ago, the state had about 1,500 people in the hospital with COVID-19, now it is more than 10,000 people. Mostly unvaccinated.

Only about 45% of the state’s total population is fully vaccinated.

The state reported this week that only 368 staffed ICU beds were left in a state of around 29 million people.

“All of our beds are pretty much occupied. Patients bedded in hallways, patients bedding in any nook and cranny that I can find . For patients, it's a scary time,“ said Tommye Austin Chief Nurse executive at University Health System.

Health executives and doctors testified to lawmakers this week how dangerous the situation has become.  

On Monday, the governor announced they would turn to medical staffing companies to try and meet the staffing demand in Texas. There’s a nursing shortage around the country.

The governor also asked hospitals to cancel elective surgeries and has directed emergency managers to set up additional treatment and vaccine centers, so there is movement at the statewide level.

Still, critics say the governor is not doing enough work to actually prevent the spread of COVID-19 — the top of that list includes mask policies.

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Paul Flahive can be reached at Paul@tpr.org