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The Austin Motel displays a sign encouraging mask-wearing.

The Austin Motel displays a message on their marquee encouraging people to wear masks on March 10, 2021 in Austin, Texas. The City of Austin said in March it would continue to maintain its mask rules despite an executive order lifting a state mandate from Gov. Greg Abbott. (Photo: Tamir Kalifa/Getty Images)

Judge Rules Local Texas Officials Can Impose Mask Mandates in Defiance of Governor

"The pandemic is not over," said a Bexar County official. "We have come too far to allow our students to be super spreaders."

Julia Conley

A district judge in Bexar County, Texas ruled Tuesday that local officials can impose mask mandates in schools in defiance of Gov. Greg Abbott's executive order barring local governments from requiring face coverings.

Judge Toni Arteaga granted a temporary restraining order to San Antonio Mayor Ron Nirenberg and Bexar County Judge Nelson Wolff, who sued the governor on Tuesday over his directive, arguing he does not have the authority to "suspend state laws that give local officials the needed authority to cope with an emergency."

"Ironically, the governor is taking a state law meant to facilitate local action during an emergency and using it to prohibit local response to the emergency that he himself declared."
—San Antonio Mayor Ron Nirenberg

The judge said an affidavit from Metro Health Chief Medical Officer Dr. Junda Woo "weighed heavily in her decision" according to local news outlet KSAT.

Nirenberg and Wolff filed their lawsuit a day after a similar challenge was announced in Dallas County, where school officials plan to defy the governor's order stating that government entities including public schools from mandating that students and staff members wear face masks when the school year begins. 

"We are challenging the governor's authority to suspend local emergency orders during a crisis such as the Covid-19 pandemic,” Nirenberg said in a statement. "Ironically, the governor is taking a state law meant to facilitate local action during an emergency and using it to prohibit local response to the emergency that he himself declared."

Abbott issued an executive order last month stating that local governments which attempt to enforce mask mandates would be subject to fines and stated that "no governmental entity can compel any individual to receive a Covid-19 vaccine."

Over the past month, cases and hospitalizations in Texas have steadily increased, with the state now reporting an average of more than 10,000 Covid-19 cases per day. 

With students and teachers set to return to school in the coming weeks, Nirenberg and Wolff requested a temporary restraining order allowing them to mandate mask-wearing in public schools and to require unvaccinated students to quarantine if they come into contact with someone who has Covid-19.

"As the school year begins, the health of our students, especially those under 12 who are not eligible to be vaccinated, are being put at risk," Bexar County Judge Nelson Wolff said in a statement. "The pandemic is not over. We need to continue to utilize every tool we have to combat the very contagious delta variant. We have come too far to allow our students to be super spreaders."

Dallas County Judge Clay Jenkins also said in a temporary restraining order and declaration on Monday that the governor does not have the authority to block mask mandates.

"School districts and government closest to the people should make decisions on how best to keep students and others safe," said Jenkins. "I hope others will join me in following the science and listening to local doctors and the CDC to act swiftly and decisively."

With nearly 9,500 people currently hospitalized with Covid-19 in Texas, Abbott on Monday called on hospitals to stop performing non-emergency medical procedures. At least 53 hospitals across the state have reached capacity in their intensive care units.

Austin has been identified as a hot spot for Covid spread despite high vaccination rates; health officials said last week that the city is at "Stage 5 risk for Covid-19 spread."

Democratic leaders in the state joined former San Antonio mayor and presidential candidate Julian Castro at a virtual press conference Tuesday demanding Abbott "rescind his restrictions on masks in schools and do his job to keep Texans safe."

On Sunday, the Southern Center for Child Advocacy filed its own lawsuit (pdf) against the governor, saying "students throughout Texas are at risk of imminent irreparable harm due to the likelihood they will contract Covid-19 if school districts are not authorized to require masks for students and staff."

"The Governor’s issuance [the executive order] violates the constitutional and statutory regime in Texas as it relates to the provision of public education," the group said in a court filing.

The legal challenges and decisions by officials in Dallas to flout Abbott's directive regarding masks in schools follows similar actions in Florida, where several school districts have announced they will require masks despite Gov. Ron DeSantis' executive order which threatened to pull state funding from districts if they do so.

Florida and Texas combined accounted for one-third of all new Covid-19 cases in the U.S. last week.

Houston school officials plan to vote on whether to impose a mask mandate on Thursday in defiance of Abbott's order.

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