AUSTIN, Texas (CN) — The Texas Supreme Court heard arguments Wednesday in a trio of lawsuits challenging an executive order issued by Republican Governor Greg Abbott banning local governments from implementing mask mandates.
Abbott issued the order on July 29, 2021, and made it so that "no person may be required by any jurisdiction to wear or to mandate the wearing of a face covering." The order sparked a dispute between the governor and school districts that planned to require students to wear masks during the fall semester.
The case being heard Wednesday, which consolidated three separate lawsuits filed by the city of San Antonio and Bexar County, Harris County and Dallas County Judge Clay Jenkins, seeks to permanently block the order from being enforced, even though mask mandates are no longer in place.
In all three cases, the trial court temporarily enjoined the state from enforcing the order. The court of appeals subsequently affirmed, leading Abbott's office to take the fight to the state's highest civil appeals court.
Arguing on behalf of the state, Principle Deputy Solicitor General Lanora Pettit told the justices the governor acted well within his authority given to him under a patchwork of laws pertaining to emergency response.
Pettit’s argument focused on the powers vested in the governor under the Texas Disaster Act of 1975.
"The most clear express delegation for [the governor's order] is section 418.018c, which allows him to control occupancy of premises in a disaster area," the state's attorney said. "A mask mandate, and whether somebody does or does not have to wear a mask to enter a building is a form of control of the occupancy of that building."
Justice Jimmy Blacklock asked Pettit if he was correct in his understanding that the Department of State Health Services has authority over local health officials, and that once a disaster declaration is made by the governor, he then takes control of the department.
Pettit agreed and explained that it is for that exact reason that the governor’s executive order preempts the local officials' attempts to further enforce mask mandates.
Lawyers representing the three local government plaintiffs were allowed to argue separately before the court.
Attorney Douglas Alexander, who represents Jenkins, the chief executive of Dallas County, went first. He began his argument by outlining ways in which the Texas Disaster Act empowers local governments to make their own disaster declarations.
“Just as… the governor was delegated authority under the Disaster Act, so were local governments,” Alexander said.
Blacklock asserted that under the disaster law, local officials are to act as agents of the governor, working in concert with his wishes. Alexander disagreed, arguing the law says the governor and local officials are to be independent of one another.
“That is recognizing that in a state with 254 counties, we do not have the governor taking all the shots on the basketball court, he is passing off the ball for many of these things to county judges to shoot baskets as well. So it is not a limiting provision,” the attorney said.
Justice Evan Young jumped in, questioning how one law could say the governor and local officials can take two separate approaches to the same disaster. Alexander simply responded that this is how the Legislature structured the law.
Justice Jane Bland asked whether the three local governments would begin mandating masks if the court were to rule in their favor. Attorneys for all three said they had no interest in returning to a mask mandate, but that it was the prerogative of the governmental entities to preserve their ability to do so in the future.
“I think what this is really about is reaffirming the discretion local authorities have already been given by the Texas Disaster Act to respond as this crisis unfolds and not preemptively shackling their hands,” said Christopher Kratovil, an attorney representing San Antonio and Bexar County.
Again, Blacklock challenged this argument.
“It feels like your position is that the local authorities can diverge from the governor’s wishes if they want to be more restrictive on the population with regard to Covid, but they could not diverge if they wanted to be less restrictive,” the justice said.
Kratovil agreed with Blacklock’s conclusion, leading the justice to ask, “How does that make any sense?” Echoing Alexander’s earlier answer, Kratovil pointed to the structure of the Disaster Act.
Before concluding the hearing, Pettit was given a chance to respond to the local governments' arguments. She continued to push the notion that under the disaster law, local officials are acting on behalf of the governor when responding to a disaster.
"Every action done under the Disaster Act by a mayor or by a county judge has to be as an agent of the governor," Pettit said.
The eight justices present for arguments Wednesday did not indicate when a ruling in the case will be released. The decision could have a significant impact on state and local officials' ability to respond to possible future outbreaks of communicable diseases.
The case is not the only legal challenge targeting Abbott's order. Parents sued the governor and the Texas Education Agency in 2021, claiming the order violated the Americans with Disabilities Act as well as other federal laws. After a federal judge permanently blocked the order from being enforced, the Fifth Circuit reinstated it after finding the parents lacked standing.
During his State of the State address last Thursday, Abbott called on the Legislature to ban any governmental entity from implementing restrictions related to Covid-19.
“We must prohibit any government from imposing Covid mask mandates, Covid vaccine mandates, and from closing any business or school because of Covid,” the governor said.
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