Can Texas Gov. Abbott ban mask mandates? A Dallas County judge to decide whether local rules remain

UPDATED AT 8:30 PM with testimony from the case.

A Dallas County judge heard arguments Tuesday over whether a local mask mandate should continue despite Texas Governor Greg Abbott’s ban on local governments from taking such public health measures. It is the latest in a dramatic, fast-paced court battle over the state in the state.

At the hearing on Tuesday, Judge Tonya Parker of 116th Civil District Court heard evidence and testimony about the effects of the pandemic and the effectiveness of wearing masks to stop the spread of the COVID-19 Delta variant, as well as legal arguments about the Texas Disaster Act.

Parker will decide, at the request of Dallas County Judge Clay Jenkins, whether to issue an injunction against Abbott. A restraining order would prevent Abbott’s order from being enforced in Dallas County and allow Jenkins to add enforcement action to his mask order.

After Tuesday’s virtual hearing, Parker said there had been moments that took her breath away, but it was unclear late at night when she would make a decision.

“It didn’t escape anyone on this screen that this was a breathtaking moment,” she said. “No doubt the eyes of our state are on us.”

State law allows various agencies, such as the governor or a district judge, to respond to emergencies through the Texas Disaster Act, which includes measures to mitigate a crisis and manage recovery efforts.

Jenkins and Abbott disagree on the scope of their responsibilities in managing the COVID-19 pandemic.

Jenkins and his legal team say mask requirements are the best way to save lives and slow the pandemic while they wait for people to be vaccinated. They argued that Jenkins, the district’s chief administrative officer who has business continuity management powers, has the legal authority to issue executive orders to make such rules.

“We need protection for the citizens of Dallas County, we need protection for the Dallas County’s economy,” Charla Aldous, one of Jenkins’ attorneys, said at the hearing on Tuesday. “Bottom line, we’re here because Judge Jenkins wants to do his job.”

Abbott and Texas Attorney General Ken Paxton say the governor’s executive order, GA-38 – which bans mask mandates, is legal because the Texas Disaster Act gives him the power to ban Jenkins and other local officials, such as school districts, from making masks to demand.

Benjamin Dower, an attorney with the Texas Attorney General, said the state will not produce witnesses and the testimony of Jenkins’ witnesses is not relevant to the hearing of the injunction.

“None of this is really relevant to the matter that the court has to decide,” said Dower. “This is really a question of law, not a fact.”

Personal vs. public good

Several public health experts testified about the spread of the virus and the effectiveness of wearing masks. All emphasized how mandates work to slow the spread of the disease.

Dr. Benjamin Greenberg, professor of neurology at UT Southwestern specializing in autoimmune diseases, illustrated the difference between decisions that affect personal health – or what individuals do at any given time to protect themselves – and those that affect public health. intended to protect the entire community.

For example, Greenberg said that smoking was banned indoors to protect others from secondhand smoke. Masking requirements is a similar public health decision that can help keep a population healthy.

“We are at risk because of the personal health choices of others,” he said. “If everyone wears a mask, we all benefit from it together.”

Another public health professional who works at Harvard Medical School and Texas A&M College of Medicine, Dr. Edward Septimus, pointed to a study in which two salon employees came to work with COVID-19 symptoms and saw 130 customers. The salon had mask requirements for both employees and customers, and the Centers for Disease Control and Prevention found that none of the customers they later contacted tested positive for the virus.

“If we all wear a mask, the people who don’t know they are infected are less likely to pass it on to others,” Septimus testified. “We have to do everything we can to reduce the transmission. … This is the right thing for all of us. “

Cross-examining Abbott’s attorney Dower, Septimus said that while voluntary compliance is an important first step, it cannot be the only tool governments use to protect public health.

“We have to take other measures because we have to protect the public health of our community,” said Septimus. “It’s sad. I hate it. But I think it’s the most important thing to do.”

Delta changed the game

Dr. Dallas County health and welfare director Philip Huang testified Tuesday how cases and hospital stays fell when mask requirements were introduced and how they rose as people started wearing them.

He said about 17% of tests in Dallas county were positive, pointing to a prediction by UT Southwestern that the county could have more than 1,800 new cases daily through Sept. 6. The more contagious Delta variant is the main reason for this climb, called Huang.

“It kind of changed the game,” Huang said. “Fully vaccinated people can still carry large loads of the Delta variant.”

During Dower’s cross-examination, he said that while cases have increased exponentially over the past few weeks, deaths have remained low.

“But death isn’t the only outcome we see,” Huang said.

Like Greenberg, Huang compared the effectiveness of masking requirements with other public health behaviors, such as smoking. He said that although people have known the dangers of smoking for years, it was only governments that began to issue guidelines banning the habit of more people quitting.

“The guidelines actually change that behavior more than the people who make their decisions,” Huang said.

Jenkins, who also testified, said his decision to issue a mask mandate was his responsibility to protect public health. He said his decision was made in consultation with medical experts as well as business and community leaders. He testified that without drastic measures, the pandemic could continue to harm the state’s economy.

“When it comes to a public health emergency, we have to listen to the experts,” said Jenkins. “And the experts are pretty much united on this.”

The arguments focus on harm, authority

Tuesday’s hearing marked the second time Parker had heard arguments about the mask mandate, but it was the first time she heard evidence. An earlier injunction hearing was intended to demonstrate whether damage was imminent if Abbott’s prohibition were enforced. Tuesday’s injunction hearing should also decide whether the decision should be more permanent.

“The damage is more than imminent – it’s already there,” said Brent Walker, one of Jenkins’ attorneys. “In the face of one of the worst health disasters in our county’s history, there is no credible argument against using a mask mandate to prevent extreme damage to citizens and the economy.”

After the injunction was granted in early August, Jenkins issued an executive order mandating masks in district buildings, businesses and schools. Abbott and Paxton appealed to the Fifth Court of Appeals in Dallas, which also sided with Jenkins.

Abbott and Paxton then appealed the restraining order to the state Supreme Court and asked him to repeal Jenkins’ new rules. The Supreme Court agreed to block Parker’s restraining order but did not make a final decision on the mask mandate ban.

In other words, Abbott and Jenkins’ orders were allowed to remain in effect until the court could rule on an injunction.

The Supreme Court decision also made Jenkins unable to enforce his order, so last week he overturned penalties for not wearing masks.

Jenkins attorneys told Parker at the hearing on Tuesday that an injunction would allow him to reintroduce those enforcement measures into his order.

“Judge Jenkins must rely on voluntary compliance,” said Doug Alexander, another Jenkins attorney. “What we heard today [is that] Voluntary compliance is not as effective as mandatory compliance for a public health measure. “

A similar case in the Bexar district ended in victory for San Antonio and district officials last week when a judge approved an injunction allowing the mask mandate to be maintained there.

On Monday evening, Paxton urged the Supreme Court to suspend the Bexar County Court’s injunction against Abbott’s order pending appeal.

“We all know that the Texas Supreme Court will rule on all of these legal issues,” Dower said at the Dallas hearing on Tuesday. “We’ll all be on the edge of our seat to find out.”

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