A first: Judge delivers a blow to Abbott's ban on mask mandates in schools with temporary restraining order

AP Photo/Seth Wenig

There’s rarely a dull moment in Texas these days. Between the state Democrat fleebaggers drama and the coronavirus pandemic, things are popping. The city of San Antonio and Bexar County sued in state district court over Governor Abbott’s ban on mask mandates in schools Tuesday morning. By Tuesday night, Bexar County Civil District Court Judge Toni Arteaga approved a temporary restraining order preventing the enforcement of Abbott’s ban. A person can get whiplash trying to keep up with new developments, often hour by hour.

For those keeping score at home, Bexar County Civil District Court Judge Toni Arteaga is a Democrat. She was first elected in 2008 and her current term on the bench ends on December 31, 2024.

The Mayor of San Antonio and the Bexar County Judge want mask mandates in city and county facilities, as well as in schools. Austin and Dallas school boards have already issued mask mandates. On Thursday it is expected that Houston ISD will do the same in preparation of the school year beginning next week. Houston Mayor Turner has already defied Abbott’s order and mandated face masks at City Hall and for all city employees who are not able to social distance. So, the mayor and the county judge requested a restraining order, and Judge Arteaga, just hours later, granted it. She cited the urgency of a timely decision as the school year is beginning. The restraining order remains in effect only until another court hearing that is slated for Monday.

This is the first court loss for Governor Abbott for his ban on coronavirus mandates.

The order was granted after an hour-long hearing by 57th Civil District Court with Judge Toni Arteaga.

Arteaga said an affidavit from Metro Health Chief Medical Officer Dr. Junda Woo weighed heavily in her decision, as did the vulnerability of children who are returning to school amid a surge in coronavirus cases.

“I don’t do this lightly,” Arteaga said.

The temporary restraining order will remain in effect until another court hearing slated for Monday.

With the ruling, the city and county will “immediately issue an order requiring masks in public schools and requiring quarantine if an unvaccinated student is determined to be in close contact with a COVID-19 positive individual,” according to a news release. According to documents presented in court, they will also require face masks for employees of Bexar County and San Antonio and visitors to city and county facilities.

San Antonio Mayor Ron Nirenberg and Bexar County Judge Nelson Woff are pleased with the ruling as they cite the surge of the Delta variant and the need to keep children as safe as possible as they return to classrooms. The governor’s press secretary, Renae Eze, doesn’t sound concerned about the loss in court.

“Governor Abbott’s resolve to protect the rights and freedoms of all Texans has not wavered. There have been dozens of legal challenges to the Governor’s executive orders—all of which have been upheld in the end. We expect a similar outcome when the San Antonio trial court’s decision is reviewed by the appellate courts.”

On July 29, Abbott issued the ban on COVID-19 mitigation mandates. His intent is to stress the importance of personal responsibility and less dependence on government mandates. That used to be a tenet in Republican Party philosophy but life changed during this pandemic. The ease with which so many people embraced authoritarian, draconian measures from bureaucratic overlords has been startling. What started out as a two-week plea to flatten the curve is now into its 16th month. It’s time to start going about our lives as best we can at this point.

For the record, Governor Abbott isn’t telling anyone to not wear a mask. He is simply saying that people shouldn’t be under government mandates to do so. It’s your choice to do so or not. Fully vaccinated people should be able to go about their business without masks, certainly in places that allow people the space to do so. The rub comes in with school children under the age of twelve as they are not currently eligible for vaccines.

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 largely stayed away from disobeying the governor or challenging him in court.

“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.”

An attorney for the city argued that Abbott had exceeded the bounds of the Texas Disaster Act of 1975. “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.”

Governor Abbott had a different outcome in court on Monday. The Texas Supreme Court denied an attempt by a group of Texas lawmakers and staffers to block the governor’s veto of funding the state legislature. He did this when the general session was shut down prematurely by Democrats who walked out instead of finishing the session in May. Abbott said that the funding could be restored in the special session. As we know, that hasn’t happened because the fleebaggers flew off to D.C. and the first special session wasn’t able to move forward with business. Now the legislature is in a second special session but as of yet, still unable to form a quorum in the House. If or when a quorum is present in the House, the funding can be restored.

The Texas Supreme Court is comprised of nine Republican justices. There are no Democrat justices on the court.

In the ruling, the nine Republican justices rejected the Democrats’ argument that Abbott’s veto violates the part of the Texas Constitution that establishes three separate and independent branches of government. The justices suggested that the dispute over funding is largely a political matter, rather than one between the Legislature and Abbott.

“While the interference by one branch of government with the effectual function of another raises concerns of separation of powers, the issue presented here is primarily one of differences among legislators,” the justices wrote.

Abbott’s veto doesn’t take effect until September 1. About 2,000 employees within the legislative branch are affected. If the veto goes into effect, their salaries and benefits would be cut. They are funded under the Article X section of the state budget. This veto doesn’t, however, affect the lawmakers. Their annual salaries – $7,200 – are guaranteed to be paid in the Texas Constitution. The veto appears to punish the wrong people if you ask me. Penalize the lawmakers who would rather run from doing their jobs, not their staff. Unfortunately, as the state constitution is written, this is the only recourse. The Texas Supreme Court sided with the governor. Now we wait and see how important it truly is for the Democrat lawmakers for their staff to be paid, won’t we? If they want them to be paid as usual, without interruption, they better get back to Austin and make sure there is a quorum. A quorum requires 100 House lawmakers to be present. So far in the second session, that number has gotten up to 96, just 4 short of a quorum. The fleebaggers are fighting among themselves now so it may not be too long before their staff can breath a little easier with the September 1 deadline approaching.