Competing Values: Health v. Democracy
A summary of the war between state and local responses to COVID-19
By Jonathan S. Petree
Attorney at McGuire, Craddock & Strother, P.C.
August 16, 2021
On May 18, 2021, Texas Governor Greg Abbott issued an Executive Order banning mask mandates. Executive Order GA-36 prohibits governmental entities in Texas—including counties, cities, school districts, public health authorities, or government officials—from requiring or mandating mask wearing.[1]
Pursuant to Governor Abbott’s Executive Order, no student, teacher, parent, or other staff member or visitor of a public school can be required to wear a mask after June 4, 2021. Exempt from the Executive Order are state-supported living centers, government-owned or operated hospitals, Texas Department of Criminal Justice facilities, Texas Juvenile Justice Department facilities, and county and municipal jails.
In spite of Governor Abbott’s Order, and in response to the rising rate of COVID-19 infections within in the Dallas-Fort Worth Metroplex, Dallas County Judge Clay Jenkins successfully obtained a temporary restraining order against Governor Abbott’s mask mandate ban[2] and subsequently issued his own Emergency Order establishing mask requirements within Dallas County. [3]
Judge Jenkins’ Emergency Order went into effect on Wednesday, August 11, 2021, and requires all child care centers, PreK-12 public schools, and commercial entities to develop a health safety policy that must require, at a minimum, universal indoor masking. The temporary restraining order against Governor Abbott’s Executive Order expires on August 24, 2021.
Governor Abbott and Attorney General Ken Paxton appealed Judge Jenkins’ mask mandate to Texas’ Fifth Court of Appeals on the theory that the mandate violates the Governor’s Executive Order issued pursuant to his emergency powers during disaster, citing the Texas Disaster Act.[4] The Fifth Court of Appeals disagreed and refused to overturn the temporary restraining order, concluding that Judge Jenkins demonstrated a probable right to relief that Governor Abbott’s power to suspend laws and rules under the Texas Disaster Act § 418.016(a) does not include the power to suspend the same Act’s grant of authority to mayors and county judges to declare and manage local disasters.[5]
Following the loss at the Fifth Court of Appeals, Governor Abbott appealed to the Texas Supreme Court.[6] The Texas Supreme Court sided with Governor Abbott and stayed the temporary restraining order while allowing the temporary injunction hearing to go forward.[7] “Let this ruling serve as a reminder to all ISDs and Local Officials that the Governor’s order stands,” Attorney General Ken Paxton tweeted on Sunday after the ruling. After his victory at the Texas Supreme Court, Governor Abbott clarified that his Executive Order does not prohibit using masks—“anyone who wants to wear a mask can do so, including in schools.”[8]
Despite the Texas Supreme Court’s ruling, some local officials say they’ll continue to require masks. Michael Hinojosa, Superintendent of the Dallas Independent School District (“DISD”), announced that DISD still plans to require masks. The Texas Supreme Court’s order was issued to Dallas County and listed Judge Clay Jenkins and the County—it did not say one word about DISD, superintendent Hinojosa stated.[9]
SMU Dedman School of Law’s constitutional law professor Dale Carpenter confirmed that the Texas Supreme Court’s ruling does not bind DISD.[10] He stated further, though, “the writing is on the wall” for other ISDs and counties promulgating mask mandates—it is likely that Abbott and Paxton will repeat the same legal maneuver they made with Dallas County in subsequent litigation.[11]
Conclusion
Nearly a year and a half later, our fight against COVID-19 continues. The issue of our response to the pandemic as individuals and as governmental bodies grows increasingly political. In DISD, the Texas Supreme Court Order notwithstanding, students and teachers should expect to have to wear a mask. At least for now.
For more information, please contact Jonathan Petree at jpetree@mcslaw.com.
This correspondence should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult a lawyer concerning your own situation and legal questions.
[1] Executive Order No. GA-36 may be found at:
[2] Judge Jenkins’ pleading for the TRO may be found at:
More details regarding Judge Parker’s TRO, and a full copy of the Order, may be found at:
[3] Judge Jenkins’ August 11, 2021, emergency order may be found at:
[4] Texas Tribune Staff, Live COVID-19 Updates: Texas Gov. Greg Abbott asks appeals court to strike down Dallas County mask mandate, Texas Tribune (Aug. 11, 2021), https://www.texastribune.org/2021/08/11/texas-mask-mandates-covid-19/.
[5] The Fifth Court of Appeals’ opinion may be found at:
https://www.aldouslaw.com/documents/05-21-00687-CV_21-00687abbott-OPINION.pdf.
[6] Governor Abbott’s Petition for Writ of Mandamus may be found at:
[7] A copy of the Texas Supreme Court’s Order may be found at:
https://www.txcourts.gov/supreme/orders-opinions/2021/august/august-15-2021.aspx
[8] Greg Abbott (@GregAbbott_TX), Twitter (Aug.15, 2021, 5:41 PM), https://twitter.com/GregAbbott_TX/status/1427037654428880909?s=20.
[9] Peyton Yager and FOX 4 Staff, Dallas ISD to keep mask mandate in place despite Texas Supreme Court ruling, FOX 4 KDFW (Aug. 16, 2021), https://www.fox4news.com/news/dallas-isd-to-keep-mask-mandate-in-place-despite-texas-supreme-court-ruling.
[10] Id.
[11] Allyson Waller, Siding With Gov. Greg Abbott, Texas Supreme Court temporarily halts mask orders in Dallas and Bexar Counties, Texas Tribune (Aug. 15, 2021), https://www.texastribune.org/2021/08/15/texas-coronavirus-supreme-court-school-mask-mandate/.