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As the COVID-19 pandemic pushes Texas hospitals to the brink, local officials in two of the state's most populous counties have turned to the courts in a bid to retake from Gov. Greg Abbott their power to impose mask mandates and other restrictions.
Dallas County Judge Clay Jenkins implored a judge late Monday night to buck Abbott and give local officials the ability to make it mandatory for residents to wear masks. On Tuesday morning, officials in Bexar County sued Abbott for the authority to enact a mask mandate in schools. Abbott has banned school districts from requiring masks for students or staff.
“Ironically, the governor is taking a state law meant to facilitate local action during an emergency and using it to prohibit local response to the emergency that he himself declared,” San Antonio Mayor Ron Nirenberg said in a statement.
The lawsuits are the most drastic recent assault on Abbott’s authority over the state’s pandemic response by a county or city official. After Abbott lifted the statewide mask mandate in March, he stripped cities, counties and school districts of the ability to put their own mask rules in place if the pandemic flared up again. As the delta variant has spread unchecked, Abbott has held firm.
In a statement, a spokesperson for the governor said Abbott “has full authority to issue executive orders that have the full force and effect of law in response to a disaster.”
“The assertion that the Governor of the State of Texas doesn’t have the authority to protect the rights and freedoms of Texans is just plain misguided,” said Renae Eze, the spokesperson.
Eze also continued to assert Abbott’s argument that the time has ended for government mandates to fight the pandemic. Instead, Abbott has pushed for “personal responsibility” and urged Texans to get vaccinated.
“Texans have learned and mastered over the past year the safe practices to protect themselves and their loved ones from COVID, and do not need the government to tell them how to do so,” Eze said.
Officials in Bexar and Dallas counties, meanwhile, are trying to regain powers they had earlier in the pandemic.
“The enemy is not each other,” Jenkins said in a statement Monday. “The enemy is the virus and we must all do all that we can to protect public health. School districts and government closest to the people should make decisions on how best to keep students and others safe.”
In a Monday legal filing, Jenkins accused Abbott of threatening lives, exceeding his authority and illegally overruling local officials’ ability to enact measures like mask mandates.
Such measures are well within city and county leaders’ powers to fight an “imminent threat to public safety,” Jenkins’ suit says, and Abbott doesn’t have the power to say otherwise.
Jenkins wants a judge to prevent Abbott from enforcing his ban on mask mandates — and confirm Jenkins has the power to put a mandate in place if he deems it necessary. If Jenkins can’t do so, he argues, “many people will unnecessarily get seriously ill or die.”
“Governor Abbott’s attempts to prevent Judge Jenkins from protecting citizens threatens lives,” the suit reads. “Dallas County is in a precarious situation as the delta variant has increasingly ravaged the city.”
Bexar County similarly claims that its public health director has the power to issue emergency health directives for schools. If not for Abbott’s order banning mask mandates, officials in Bexar and San Antonio would require mask-wearing among city and county employees and on property owned by the city and county.
The lawsuits come as the delta variant drives up hospitalizations across the state and depletes the number of beds available for the state’s sickest patients. In the state hospital region that includes Dallas — an area that’s home to more than 8 million people — there are 100 beds in intensive care units, according to the Texas Department of State Health Services. Less than 9% of the region’s 15,545 hospital beds were available Monday.
Fifty-one ICU beds were available in the region that includes Bexar County, which includes 2.9 million people. About 10% of that region’s 6,402 total hospital beds were empty.
As the virus resurges, Abbott has largely stripped cities, counties and school districts of the ability to enact sweeping measures to slow the rampant spread of the virus that they had earlier in the pandemic.
On top of his ban on mask mandates, Abbott forbade local leaders from enacting occupancy restrictions on businesses to prevent large groups of people from gathering and potentially spreading the airborne virus to one another.
That’s largely left mayors, county judges and school leaders to simply implore people to wear masks and get vaccinated.
Jenkins filed his request as part of an ongoing lawsuit between himself and Dallas County Commissioner J.J. Koch, according to The Dallas Morning News, which first obtained a copy of the court filing.
Koch sued Jenkins on Thursday after the county judge ordered the commissioner to be removed from a public meeting where Jenkins mandated mask-wearing, according to the Morning News.
School districts are also resisting Abbott’s executive order, which prevents them from requiring mask-wearing even though the U.S. Centers for Disease Control and Prevention updated its guidance to recommend “universal indoor masking by all students.” Dallas ISD announced Monday morning that it will require students and teachers to wear masks on campus. Houston ISD’s superintendent has said he wants to issue a mandate as well, and the school board is scheduled to discuss the idea later this week.
Abbott added the issue to the second special session agenda he unveiled Thursday, asking lawmakers to write into law that districts cannot require students to wear masks or get vaccinated.
The move falls in line with Abbott’s approach to the pandemic in recent weeks — emphasizing individual responsibility over government intervention. After ending statewide mandates earlier this year, he has gone farther on that approach by banning local measures and trying to protect the rights of the unvaccinated. He has drawn criticism across the board from public health experts and officials on the city, state and federal levels who note that the surge in COVID-19 cases has made it more necessary than ever to enact these mandates.
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