As the Delta variant sweeps across Texas, local officials in the state’s largest metro areas who have swallowed Gov. Greg Abbott’s bans on COVID restrictions for much of the pandemic are now in full revolt against the governor over his refusal to allow local mask mandates.
On Tuesday afternoon, a state district judge in San Antonio granted a request by the mayor and Bexar County judge to require face coverings in schools and at city and county facilities. Hours later, a Dallas judge ruled that Abbott’s ban on mask mandates was not “a necessary action to combat the pandemic” and granted Dallas County’s top elected official broad authority to require masks in public. Harris County commissioners piled on shortly after, authorizing the county attorney to file their own challenge to the governor’s order.
Meanwhile, Austin and Dallas schools already had issued their own mask mandates in defiance of the governor’s order. Houston ISD, the state’s largest public school system, was expected to follow suit Thursday ahead of reopenings next week, while Mayor Sylvester Turner since last Wednesday has required city employees to wear masks at work when they are unable to socially distance. Fort Worth ISD will also require masks indoors next week when classes begin, the district’s superintendent announced Tuesday evening.
The local pushback coincides with a surge in COVID cases and hospitalizations that has overwhelmed medical facilities in Houston and across the state. While mayors and county judges have frequently blasted Abbott for overriding their COVID decisions, until now they had made only sporadic one-off attempts to flout the governor, with little success.
“Obviously cities and counties sue the state left and right for certain policies and this and that, but I haven't seen this number of school districts and local officials suing the governor before,” said Jeronimo Cortina, a political science professor at the University of Houston.
Local officials have said they feel compelled to act without any tools to combat the sharpest rise in COVID cases and hospitalizations since the pandemic began last spring.
“It’s a moment of necessary civil disobedience. Children's lives are literally at risk,” Harris County Judge Lina Hidalgo said earlier this week as she touted support for Houston ISD’s potential mask mandate. “Schools have an unspoken commitment to protect the children in their care. I can't imagine the state of Texas suing school districts that require masks to keep kids safe.”
Abbott has defended his approach to the virus, arguing that Texans have “mastered the safe practices that help to prevent and avoid the spread of COVID-19” and no longer require government restrictions. On Monday, however, Abbott announced that state health officials will begin recruiting out-of-state nurses to help fill staffing gaps and asked hospital executives to postpone non-critical surgeries.
By Tuesday, more than 10,000 people were hospitalized with COVID-19 in Texas for the first time in six months. The Houston region recorded an increase in COVID hospitalizations for the 25th straight day, with local hospitals recording their highest numbers since late January when only 2 percent of the state was vaccinated.
Medical officials say the surge is being driven by the highly contagious Delta variant and the millions of Texans who have yet to receive the COVID vaccine. The Centers for Disease Control and Prevention said last month that 97 percent of people entering hospitals for COVID-19 were unvaccinated, one of the many recent statistics that have left parents concerned as they prepare to send children who are not eligible for the vaccine back to school.
Abbott spokeswoman Renae Eze predicted an appellate court would reverse the San Antonio judge’s decision, and chastised school officials for imposing mask mandates in the face of the governor’s order, which he issued in May.
“We are all working to protect Texas children and those most vulnerable among us, but violating the governor’s executive orders — and violating parental rights — is not the way to do it,” Eze said. “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.”
Meanwhile in Harris County, state judges joined the parade of local mask mandates on Tuesday, voting unanimously to require face coverings in courthouses despite Abbott’s order. Judges cited guidance from the all-Republican Texas Supreme Court that gives judges broad discretion to take “reasonable” action to protect themselves and those in their courtrooms, along with an opinion from Attorney General Ken Paxton last August that stated judges could require masks in their courtrooms.
The city of San Antonio is now suing for that same discretion.
At a hearing Tuesday afternoon before state District Judge Antonia “Toni” Arteaga, a city attorney argued that Abbott had exceeded the bounds of the Texas Disaster Act of 1975, which the governor cited in suspending local authority to impose COVID restrictions.
“The Texas Legislature has given cities and counties broad authority within the Texas Health and Safety Act,” said Assistant City Attorney Bill Christian. “Only the Legislature has the authority to suspend laws.”
Kimberly Gdula, a lawyer with the Texas Attorney General’s Office, pointed to an appellate court ruling last November that upheld Abbott’s ban on local business restrictions. She also argued that the city and county were asking the court to improperly “throw out” parts of the Disaster Act.
Arteaga is set to take up the case again on Monday at an injunction hearing. In the meantime, the San Anotnio-area health authority swiftly enacted a mask mandate for local schools and issued a requirement that unvaccinated students, staff, teachers and visitors remain away from campus if they are “found to be in close contact with a COVID-19 positive person.”
Abbott has become familiar with mask mandate debates during the course of the pandemic, drawing criticism from local leaders when he nullified Harris County’s first mask order in the spring of 2020 before facing heat from Republicans who accused the governor of infringing on their personal liberties when he issued his own mask requirement for most of the state a few months later.
Since Abbott began removing local authority to issue COVID restrictions, a handful of officials have openly defied the governor only to see their attempts struck down in court. Last November, El Paso County Judge Ricardo Samaniego unsuccessfully ordered nonessential businesses to close during a massive spike in cases that led officials to enlist inmates to help handle the flow of dead bodies in local morgues.
The Texas Supreme Court later blocked Austin and Travis County restrictions on restaurant operations around the New Year’s holiday. The city and county also temporarily continued to require masks in public after Abbott lifted his statewide mask mandate in March.
With the ongoing COVID surge, Cortina said the best political outcome for Abbott now may be for the courts to uphold the local mask mandates.
"That way, the governor would simply not backtrack on his executive orders, while allowing counties and ISDs to do as they please,” Cortina said.
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