Can Texas Governor Abbott ban mask warrants? Dallas County judge to decide if local rules remain

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

A Dallas County judge heard arguments on Tuesday over whether to allow a continued local mask warrant despite Texas Governor Greg Abbott’s ban preventing local governments from adopting such public health measures . It is the latest in a dramatic and swift court battle over the issue in the state.

At Tuesday’s hearing, Judge Tonya Parker, of the 116th Civil District Court, heard evidence and testimony on the impact of the pandemic and the effectiveness of mask wearing in stopping the spread of the delta variant. of COVID-19, as well as legal arguments on the Texas Disaster Act.

Parker will decide whether or not to grant a temporary injunction against Abbott at the request of Dallas County Judge Clay Jenkins. A temporary injunction would prevent the execution of Abbott’s order in Dallas County and allow Jenkins to add enforcement measures to his mask order.

After Tuesday’s virtual hearing, Parker said there were times that took her breath away, but it wasn’t clear late at night when she would make a decision.

“It is not lost on anyone on this screen that it has been such a mind-blowing moment,” she said. “Without a doubt, the eyes of our state are on us. “

State law allows various authorities, such as the governor or a county 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 extent of their responsibilities in managing the COVID-19 pandemic.

Jenkins and his legal team say mask warrants are the best way to save lives and slow the pandemic while waiting for people to get vaccinated. They argued that Jenkins, the head of the county administration that has emergency management powers, has the legal authority to issue orders to impose such rules.

“We need protection for the citizens of Dallas County, we need protection for the economy of Dallas County,” Charla Aldous, one of Jenkins’ attorneys, said at the hearing Tuesday. “In short: we are here because Judge Jenkins wants to do his job. “

Abbott and Texas Attorney General Ken Paxton say Governor’s Order in Council GA-38 – which bans mask warrants, is legal because the Texas Disaster Act gives him the power to ban Jenkins and other local officials like school districts from requiring masks.

Benjamin Dower, an attorney with the Texas attorney general’s office, said the state would not produce any witnesses and that the testimony of Jenkins’ witnesses was irrelevant to the temporary injunction hearing.

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

Personal good against public good

Many public health experts have testified about the spread of the virus and the effectiveness of wearing a mask. All highlighted how warrants work to slow the spread of the disease.

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

For example, Greenberg said that indoor smoking is prohibited to protect others from secondhand smoke. Requiring masks is a similar public health decision that can help maintain a healthy population.

“We are at risk because of the personal health decisions of others,” he said. “When everyone wears a mask, we all benefit collectively. “

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

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

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

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

Delta “changed the game”

Dr Philip Huang, Dallas County director of health and human services, testified on Tuesday about how cases and hospitalizations declined when mask warrants were put in place, and how they increased when people started to stop wearing them.

He said about 17% of tests in Dallas County are positive and pointed to a prediction from Southwestern UT that the county could have more than 1,800 new cases per day by September 6. . The most contagious delta variant is the main driver of this peak, Huang. noted.

“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 although cases have increased exponentially in recent weeks, deaths have remained low.

“But death is not the only outcome we envision,” Huang said.

Huang, like Greenberg, compared the effectiveness of mask warrants to other public health behaviors, such as smoking. He said although people have known about the dangers of smoking for years, it wasn’t until governments started issuing policies banning the habit that more people started to quit.

“Politicians actually change this behavior more than the people who make their choices,” Huang said.

Jenkins, who also testified, said his decision to issue a mask warrant was within his authority 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 hurt the state’s economy.

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

Arguments center on prejudice, authority

Tuesday’s hearing was the second time Parker had heard arguments over the mask’s warrant, but it was the first time she had heard evidence. A previous restraining order hearing had to prove whether there would be imminent harm if Abbott’s ban were to be enforced. Tuesday’s temporary injunction hearing was also due to decide whether the ruling should be more permanent.

“The evil is more than imminent – it’s already here,” said Brent Walker, one of Jenkins’ attorneys. “Faced with one of the worst public health disasters in our country’s history, there is no credible argument against using a mask warrant to prevent extreme damage to citizens and the economy. . “

After the no-contact order was granted in early August, Jenkins issued an executive order imposing masks on county buildings, businesses and schools. Abbott and Paxton appealed to the Dallas Fifth Court of Appeals, which also sided with Jenkins.

Abbott and Paxton then appealed the restraining order to the state Supreme Court, asking it to overturn Jenkins’ new rules. The Supreme Court agreed to block Parker’s restraining order, but has not made a final decision on the mask warrant ban.

In other words, the Abbott and Jenkins orders were allowed to remain in effect until the court could decide on a temporary injunction.

The Supreme Court ruling also rendered Jenkins unable to fulfill his order, so he removed the penalties for not wearing masks last week.

Jenkins’ lawyers told Parker at Tuesday’s hearing that a temporary injunction would allow him to add these enforcement measures to his order.

“Judge Jenkins has to rely on voluntary compliance,” said Doug Alexander, another of Jenkins’ attorneys. “What we heard today [is that] voluntary compliance is not as effective a public health measure as mandatory compliance.

A similar case in Bexar County ended in a victory for San Antonio and county officials last week when a judge approved a temporary injunction, allowing the mask warrant to remain in place there.

On Monday evening, Paxton asked the Supreme Court to stay the Bexar County Court injunction against Abbott’s order while the appeal continues.

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


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