Experts weigh in on who will win legal battle over Texas Gov. Greg Abbott's no mask mandate

Saturday, August 14, 2021
Who will win the legal battle over mask mandates in Texas?
A judge just granted Harris County a temporary restraining order against Gov. Abbott's ban on mask mandates, and one attorney called this a victory for concerned residents.

As more school districts in the Houston area issue mask mandates, the legal battle between the Gov. Greg Abbott and the local government drags on.

SEE RELATED STORY: Some Houston-area school districts defying Gov. Abbott's COVID orders

On Friday, Galveston became the latest district in the area to defy Abbott's executive order and issue a mask mandate for students and staff ahead of the first day of school.

The Harris County Attorney's Office announced Thursday it was filing a lawsuit challenging the governor's order. Hours later, Harris County Judge Lina Hidalgo explained why the county's public health department was issuing a mask mandate for children ages two and older for all county-area public schools and non-religious private schools.

"I've spoken to all the superintendents," Hidalgo said in a press conference on Thursday. "I've spoken with teachers and parents, heard from them, and the overwhelming message was they need an advocate. They need an advocate, a local directive, local clarity on what the situation is. The situation is urgent. The situation is dire, because of how transmissible the variant is and because the schools are starting soon. At the same time, we had these legal developments."

According to Abbott's order, those who defy the order will face a $1,000 charge.

MORE: Gov. Abbott's office repeats 'personal responsibility' message after larger counties challenge order

Kellen Zale, a professor at the University of Houston Law Center, said Abbott claims to be operating under the Texas Disaster Act, but is using that power of authority different than governors before him.

"The Texas Disaster Act has not been used this way in the past," Zale said, "Previous governors have used this state disaster act to essentially help local governments get through the bureaucracy, and this governor is claiming it gives him the authority to do something else. This essentially suspends the pre-existing powers the local government would have to actually address public health emergencies, and so it is a frustrating situation particularly in the counties where there are escalated cases."

For now, the mask mandates remain in place. However, the final decision will come from the Texas Supreme Court.

Mark Jones, a political science professor at Rice University, said he believes the state's Supreme Court ruling will be in Abbott's favor.

"If they let it go through the normal process, it could take a few more weeks," Jones said. "By and large, what we've seen the governor and the attorney general do in these type of emergency situations is appeal directly to the Texas Supreme Court. All information, all signals, are that the Texas Supreme Court will side with Governor Abbott, both based on what the constitution says, what the law says and the fact that it's a Republican Supreme Court and these are Democratic counties, cities, and school districts."

On Friday, Abbott's press secretary Renae Eze, weighed in a day after Houston ISD approved a districtwide mask mandate. Eze re-sent a statement from earlier this week.

"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. Gov. 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. Gov. Abbott has spent his entire time in office fighting for the rights and freedoms of all Texans, and our office continues working with the Office of the Attorney General to do just that. The best defense against this virus is the COVID vaccines, and we continue to strongly encourage all eligible Texans to get vaccinated."

On Friday, a Travis County judge granted Harris County a temporary restraining order against Abbott's ban on mask mandates, according to Harris County Attorney Christian D. Menefee.

"While this decision is temporary, it's a victory for residents in Harris County who are concerned about this public health crisis," Menefee said in a statement. "We need every tool at our disposal to stop the spread of COVID-19, including masks and other measures that are proven to slow the spread."

For updates on this story, follow Roxie Bustamante on Facebook, Twitter and Instagram.