The Texas Supreme Court has temporarily restricted Dallas County Judge Clay Jenkins’ ability to enforce a mask mandate in schools and businesses, allowing Gov. Greg Abbott’s executive order banning local leaders from implementing such mandates to stand. The entirely Republican Texas Supreme Court granted a temporary stay Sunday, at the request of Republican Gov. Greg Abbott and Texas Attorney General Ken Paxton. But hearings on the matter will continue in lower courts as scheduled, though the Supreme Court could still issue a ruling.
Bexar County, where the county seat is San Antonio, has a hearing Monday, and Dallas County has a hearing Aug. 24.
Late Sunday, Dallas ISD announced it would continue to mandate masks in classrooms, saying the court’s ruling affected Jenkins’ Dallas County order but not the school district’s. Several other area districts, though, said they would make wearing masks optional.
Jenkins had argued that the act does not give Abbott the power to suspend the authority of mayors and county judges to declare and manage local disasters.
Jenkins won before a civil district court judge, Democrat Tonya Parker, and the Fifth Court of Appeals in Dallas before losing in the state’s highest court. The Fifth Court is made up of mostly Democrats. Jenkins is also a Democrat. But those victories were short-lived.
The orders, however, explicitly state that hearings can still proceed, which implies justices were split, said David Coale, a Dallas attorney who blogs about the Texas Supreme Court and federal courts.
”It’s interesting. If they really just wanted to flush it on the legal issue of ‘does the governor have the authority?’ that’s presented on this record. … but they didn’t do that,” Coale said. “That suggests to me that more than one justice wants to see what the facts are.”
The court could have affirmed the governor’s ban on mask mandates without the hearings, he said.
“If you don’t want to know what the facts are, you just squash the whole thing,” Coale said. “They’ve done that before. They can say, ‘The governor has the authority and that’s that.’ ... There’s only one reason you have temporary injunction hearings and it’s for people to testify or you offer affidavits — it’s like a mini-trial.”
One of Jenkins’ attorneys also drew encouragement from the court’s action.
“Gov. Abott did not want an evidentiary hearing to happen and the Supreme Court wants to have the record developed, and that is a win for Judge Jenkins because we can go develop a record to support public health,” lawyer Sean McCaffity said.
After the decision, Jenkins posted on Twitter noted the Supreme Court’s decision doesn’t affect the hearing scheduled in the Dallas civil court.
