Texas local governments, public schools fight with Governor Abbott over vaccine, mask rules, as Supreme Court has yet to make final ruling

The eight Justices of the Texas Supreme Court.

The Golden Hammer Staff Reports

Austin, August 30 – Texas local governments and public school districts have locked into a fight with Governor Greg Abbott over control of vaccine and mask mandates across the state. While the Supreme Court of Texas has indicated in temporary orders that it sides with the Governor’s prerogative to respond, at a statewide level, to a statewide publicly-declared disaster, the state’s highest court still has not issued a final ruling on these complex issues.

Under the Texas Constitution, the Legislature has the power to create laws, although Governor Abbott has unilaterally suspended many fully-enacted laws during the COVID-19, or China Virus, pandemic. Abbott has also created new mandates without legislative approval. In enacting Senate Bill 968 during the Regular Session of the 87th Legislative Session, private Texas businesses, which receive state funds, may not require customers to show proof that they received a China Virus vaccine. Abbott’s Executive Order 38, which he issued on July 29, 2021, sought to extend that prohibition t0 all governmental entities, including, without limitation, local government entities.

The tension comes from the Texas Constitution’s protection of local governments and school district’s from state-level government control as well. Of course, the Texas Education Agency (TEA) oversees public school districts. TEA has made clear it will not enforce Governor Abbott’s prohibition of mask mandates by local government entities and school districts.

Meanwhile, Governor Abbott and Texas Attorney General Ken Paxton have made clear that they will seek to enforce Abbott’s mask mandate prohibition. As a result, Governor Abbott, local governments, and school districts seeking to impose mask mandates for public school teachers and students are locked in a battle of power and control under the Texas Constitution.

Supreme Court’s Most Recent Mask Ruling

The most recent Supreme Court ruling on mask mandates came in case 21-0720 involving the mask mandates, which Bexar County Judge Nelson Wolff and San Antonio Mayor Ron Nirenberg, both Democrats, sought to impose throughout their localities including within public schools.

The City of San Antonio and Bexar County sued Governor Abbott in a Bexar County District Court to enjoin enforcement of Executive Order GA-38, which disallows local government entities from requiring individuals to wear face coverings. The trial court issued a temporary restraining order prohibiting enforcement of that provision of GA-38. Even after the Supreme Court stayed the TRO, the trial court then held an evidentiary hearing and granted a temporary injunction. After the Fourth Court of Appeals sided with the trial court, General Paxton filed an appeal on behalf of the Governor to the Supreme Court, which stayed the trial court’s and Court of Appeals’ rulings during the pendency of the appeal in the state’s highest court.

In his brief to the Supreme Court, General Paxton summarized the situation: “The Texas Disaster Act of 1975 makes the Governor the ‘commander in chief’ of the State’s response to a disaster and empowers him to issue executive orders that have the ‘force and effect of law.’ Several trial courts have concluded, however, that when the Governor and localities issue contradictory emergency orders, the local orders control.”

Neither Bexar County nor the City of San Antonio have yet submitted their briefing to the Supreme Court.

In issuing its temporary stay, the Supreme Court opined:

“This case, and others like it, are not about whether people should wear masks or whether the government should make them do it. Rather, these cases ask courts to determine which government officials have the legal authority to decide what the government’s position on such questions will be. The status quo, for many months, has been gubernatorial oversight of such decisions at both the state and local levels. That status quo should remain in place while the court of appeals, and potentially this Court, examine the parties’ merits arguments to determine whether plaintiffs have demonstrated a probable right to the relief sought.”

Vaccine mandates?

On Wednesday, August 25, Governor Abbott issued his latest Executive Order, Number 39, for which he explained, “”Vaccine requirements and exemptions have historically been determined by the legislature, and their involvement is particularly important to avoid a patchwork of vaccine mandates across Texas.”

Abbott ordered “No governmental entity can compel any individual to receive a COVID-19 vaccine.  I hereby suspend Section 81.082(f)(1) of the Texas Health and Safety Code, and any other relevant statutes, to the extent necessary to ensure that no governmental entity can compel any individual to receive a COVID-19 vaccine.”

In Executive Order EA-39, which he claimed to issue under his original March 13, 2020, disaster declaration relating to the COVID-19 virus for all Texas counties, Abbott acknowledged the primary role of the Texas Legislature over immunization laws and regulations in Texas. At the same time, however, Abbott noted, “where the legislature has imposed immunization requirements, it has also taken care to provide exemptions that allow people to opt out of being forced to take a vaccine.”

Abbott claims that his latest executive order’s purpose is to “maintain the status quo of prohibiting vaccine mandates through executive order while allowing the legislature to consider this issue while in” the Second Special Session, especially since Abbott added this issue to the Second Special Session currently convened.




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