Texas Counties Challenge Governor Abbott’s Order Banning Mask Mandates

On July 29, 2021, Governor Abbott issued Executive Order GA-38 relating to the continued response to the COVID-19 disaster. The order provided requirements and guidance regarding testing, vaccines, and operating limits for businesses and other establishments. GA-38 also incorporated an earlier executive order that banned local governments from issuing mask mandates at schools and municipal buildings. In response, several of Texas’ largest counties filed lawsuits challenging GA-38 and seeking permission from the Courts to issue local orders.

Bexar County | Dallas County | Houston Area | Travis County

Bexar County

On August 10, 2021, the City of San Antonio and Bexar County obtained a temporary restraining order halting the Governor’s ban on local authority.

In accordance with the TRO, the Bexar County Local Health Authority issued a health directive requiring face masks in both public and private schools for all students ages 2 and older, staff, teachers, and visitors to K-12 schools regardless of vaccination status. Bexar County Judge Nelson Wolff also issued Executive Order NW-21 mandating compliance with the Local Health Authority’s Health Directive. NW-21 also requires:

• All employees and contractors, visitors, and members of the public over age 10 must wear a face covering when entering Bexar County buildings and facilities and throughout their visit unless the contractor, visitor, or member of the public has a medical condition or disability that prevents wearing a face covering.
• Bexar County employees must wear face coverings when entering Bexar County buildings and other facilities and must do so whenever it is not feasible to maintain six feet of distance, unless the employee has a medical condition or disability that prevents wearing a face covering.
• All commercial entities in Bexar County providing goods or services directly to the public must continue to post and implement a Health and Safety Policy as previously required.

Under NW-21, commercial entities are not required to adopt any specific risk mitigation measures, but must post their Health and Safety Policy in a conspicuous location sufficient to provide clear notice to all employees, customers, and visitors of any health and safety requirements implemented, including any policy on wearing a face mask. The local orders have no impact on most privately owned businesses or establishments, other than private schools, that are not owned by the City of San Antonio or Bexar County except that the orders require businesses to adopt and post a Health and Safety Policy.

• Nursing homes, state supported living centers, assisted living facilities, and long-term care facilities are required to follow guidance from the Texas Health and Human Services Commission.
• NW-21 directs long-term care facilities and dialysis facilities to follow all additional CDC guidance to take proactive steps to protect the health of residents and preserve the healthcare workforce by identifying and excluding potentially infected staff members, conforming to visitation requirements specified by other relevant orders, ensuring the early recognition of potentially infected patients, and implementing appropriate infection control measures.
• Landlords, owners of residential property, and others seeking to pursue eviction or other possessory action related to residential real estate must comply with any order of the Supreme Court of Texas.

NW-21 went into effect at 12:01 a.m. on August 11 and will continue until 14 days after termination of the statewide public health emergency unless otherwise extended, modified, or terminated.

On August 13, Governor Abbott and Attorney General Ken Paxton filed a petition for writ of mandamus in the Fourth Court of Appeals seeking to vacate or reverse the TRO, which the Fourth Court of Appeals denied. The Texas Supreme Court subsequently issued an emergency stay on August 15. However, a San Antonio lower court granted temporary injunction to the City of San Antonio and Bexar County on August 16, which kept local mask mandates in place. The petition for writ of mandamus remains pending before the Court.

Dallas County

After Dallas County reported more than 3,000 new COVID-19 cases in a three-day period, County Judge Clay Jenkins filed a counterclaim in a suit initially brought by Dallas County Commissioner J.J. Koch against Judge Jenkins in his official capacity, seeking a temporary restraining order and declaratory judgment to hold portions of GA-38 regarding mask mandates unenforceable. On August 10, 2021, Judge Tonya Parker granted the TRO enjoining the Governor from banning local mask requirements.

Under the TRO, Judge Jenkins is authorized to take certain actions as provided in the Texas Disaster Act to protect Dallas County residents. The TRO remains in effect until a hearing on the temporary injunction request, which is set for Tuesday, August 24.

On August 12, Judge Jenkins updated his August 11 emergency order on the required use of face masks in certain public spaces. The updated order, which went into effect at 10 a.m. on August 12 and according to its terms will continue until rescinded by Judge Jenkins, includes the following:

• All child care facilities and PreK-12 public schools in Dallas County must develop and implement a Health and Safety Policy that, at a minimum, requires face coverings indoors regardless of vaccination status, except for children under age 2. The order also recommends including a policy to maintain a distance of at least three feet between students within classrooms.
• Dallas County must follow requirements issued by the Local Health Authority, made effective as of 1 p.m. on August 12.
• All public institutions of higher education in Dallas County must develop and implement a Health and Safety Policy that requires, at a minimum, universal indoor masking regardless of vaccination status, except for children under age 2. The order also recommends including a policy to maintain a distance of at least three feet between students within classrooms.
• All commercial entities providing goods or services directly to the public in Dallas County must implement a Health and Safety Policy that requires, at a minimum, universal indoor masking for all employees and visitors, except when an employee is alone in their office. Other suggested health and safety measures include temperature checks or health screenings. The Health and Safety Policy must be posted in a location conspicuous enough to provide sufficient notice to employees and visitors of the business’ safety requirements. Failure to develop and implement a policy within three days of the effective date of the order could result in a fine of up to $1,000 for each violation.
• All employees, contractors, and visitors must wear masks when entering a building or offices owned or operated by Dallas County. However, employees are not required to wear a face covering while alone in their office.
• For the general public, the order strongly urges all people over the age of 2 to wear a face mask when in a public indoor space. No civil or criminal penalty will be imposed on individuals who do not wear masks.
• A severance clause that states “if any phrase, clause, sentence, paragraph, or section of this Order should be declared invalid by the final judgement or decree of any court of competent jurisdiction, such invalidity shall not affect any of the remaining phrases, clauses, sentences, paragraphs, and sections that can be given effect without the invalid provision.”

Following the issuance of the August 11 order, Governor Abbott and Texas Attorney General Ken Paxton announced that they had filed a petition for writ of mandamus in the Fifth Court of Appeals seeking to strike down the Dallas County order. After the Fifth Court of Appeals denied the request, the Texas Supreme Court issued an emergency stay on August 15, and the petition for writ of mandamus remains pending before the Court.

Houston Area

On August 13, 2021, a Travis County judge granted Harris County Attorney Christian D. Menefee and all Harris County school districts a temporary restraining order that allows local mask mandates to be issued in the county. The petition, which was filed against Governor Abbott and Attorney General Ken Paxton on August 12, sought a temporary restraining order that would enjoin the Governor from:

• enforcing GA-38 against any local governmental entities and officials in Harris County;
• seeking to fine any local governmental entities or officials in Harris County for alleged violations of GA-38; and
• suspending various sections of the Government and Health and Safety Codes that he suspended in enacting GA-38.

The Harris County Local Health Authority has already ordered the use of face coverings in all public and non-religious private schools and child care centers in Houston and Harris County.

On August 11, Fort Bend County was also granted a temporary restraining order on that enjoins the Governor from enforcing restrictions on county officials. After receiving the TRO, County Judge KP George issued an order, which went into effect at 11:59 p.m. on August 12, requiring face coverings in all Fort Bend County facilities. The Fort Bend County Local Health Authority also notified area superintendents that, effective at 11:59 p.m. on August 12, all students over the age of 2, educators, school staff, and visitors to school campuses and district facilities must wear face coverings while indoors and when closer than three feet of others. The TRO is operative until Wednesday, August 25 and pending a hearing on the temporary injunction request, which is set for Thursday, August 19.

Travis County

On August 11, 2021, Travis County Judge Andy Brown and Austin Mayor Steve Adler signed orders requiring students, staff, and visitors over the age of 2 to wear a face covering while on any public school property or public school buses during Stages 3, 4, and 5 under Austin Public Health’s COVID-19 Risk Based Chart. Austin is currently in Stage 5 under the Risk Based Chart. Those orders have since been amended to include public colleges and charter schools.

In addition, Judge Brown and Mayor Adler issued orders on August 11 requiring those over age 2 to wear a face covering within facilities owned or managed by the city or county. The designated county facilities do not include correctional facilities, for which rules will be promulgated by appropriate authorities including the Travis County Sheriff or Chief Juvenile Probation Officer. Courthouse complexes and courtrooms are subject to rules mandated by the Texas Supreme Court, the Office of Court Administration, and Operating Plans of the Travis County Judiciary.

The Southern Center for Child Advocacy (SCCA) in Travis County on August 9 filed a suit including requests for temporary and permanent injunctions against Governor Abbott concerning GA-38. In its first amended petition, the SCCA claimed GA-38 undermines the authority of Texas school districts to require face coverings, which is an overreach of the Governor’s authority and unconstitutional since it “creates an arbitrary and capricious impediment to the ability of school districts to respond to this pandemic.” The suit remains pending.

This article, originally published on August 12, 2021, has been revised. Please note updates regarding lawsuits and mask orders in Bexar, Dallas, Harris, and Travis counties.