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Bexar County Can Issue Mask Mandate For Schools Despite Abbott's Ban, Judge Says In Temporary Order

Desks are spaced out in a classroom at Ott Elementary School in San Antonio.
Allie Goulding
The Texas Tribune
Desks are spaced out in a classroom at Ott Elementary School in San Antonio.

A Texas district judge ruled that San Antonio and Bexar County officials can temporarily issue mask mandates, despite Gov. Greg Abbott’s ban on local restrictions.

On Tuesday, Judge Antonia Arteaga granted the local officials a temporary restraining order blocking Abbott’s action, saying she did not take her decision lightly. She cited the start of the school year and public guidance given by Dr. Junda Woo, medical director of San Antonio’s Metropolitan Health District, concerning the need for masks in public schools as the highly contagious delta variant contributes to a surge in coronavirus cases across the state.

The decision is temporary, pending a hearing on Monday.

“For now, we're going to take a victory lap, we're very happy with the result that we got today,” said Joe Gonzales, Bexar County District Attorney, during a news conference on Tuesday.

In a statement, Abbott's office said it believes the challenge to Abbott's order will not stand.

"Governor Abbott’s resolve to protect the rights and freedoms of all Texans has not wavered," said Renae Eze, a spokeswoman for Abbott's office. "There have been dozens of legal challenges to the Governor’s executive orders—all of which have been upheld in the end. We expect a similar outcome when the San Antonio trial court’s decision is reviewed by the appellate courts."

The ruling came shortly after the city of San Antonio and Bexar County sued Gov. Greg Abbott on Tuesday morning over his May executive order blocking local officials and school districts from enforcing a mask mandates.

City and county officials argued in their lawsuit that Abbott’s order gets in the way of them requiring city and county employees to wear masks as well as visitors to city and county facilities.

In a statement made ahead of the ruling, the city of San Antonio said if granted the temporary order they “will immediately issue an order requiring masks in public schools and requiring quarantine if an unvaccinated student is determined to be in close contact with a COVID-19 positive individual.”

Recently the Texas Education Agency released guidance saying school districts are not required to conduct contract tracing. Despite guidance from TEA and Abbott's executive order, which pull back preventative measures against the coronavirus, districts from metro areas such as Houston, Dallas and Austin have emphasized they will work to include safety mandates as part of their back-to-school plans.

During Tuesday’s hearing William Christian, an attorney representing the city, argued that under the Texas Disaster Act of 1975, Abbott does not have the latitude to override city and county mask mandates.

“We need to impose this mask mandate now — not Monday, not the week after that, now,” Christian said.

Kimberly Gdula, an assistant state attorney general, said the local officials who sued didn’t demonstrate harm.

“They are not asking the court for relief that preserves the status quo,” Gdula said, citing an appeals court’s decision in 2020 that halted El Paso County’s shutdown on nonessential business. Local restaurant owners and Texas Attorney General Ken Paxton sued the county, saying it’s order went against a state executive order that limited restrictions on business.

U.S. Rep. Joaquin Castro, D-San Antonio, commended local leaders on Tuesday for their actions against Abbott.

“If Gov. Abbott won’t protect San Antonio children, local leaders will do the right thing for our student’s health and safety,” Castro wrote on Twitter.

In Bexar County, almost 50% of residents are fully vaccinated. However, vaccines have not been approved for children under 12 years of age, presenting a worry for officials who say that’s all the more reason why masks are needed in schools. Covid-19 cases have again surged in the state, with hospitalizations reaching levels not seen since February. The state’s positivity rate, which measures how prevalent the virus is in Texas, was at 18.1% as of Sunday, above the 10% threshold federal guidance identifies as a “red zone” for states.

Ovidia Molina, Texas State Teachers Association President, said in a statement that the ruling was a correct one, with it putting the safety of students, educators and community members first. The organization is also once again calling on Abbott to withdraw his executive order.

"It is important for students and educators to return to the classroom, but they must do so with safety precautions because the pandemic is still dangerous," Molina said.

Hank Bostwick, Southern Center for Child Advocacy volunteer coordinator, said the ruling is a positive step to taking down the governor's order. His organization also filed a lawsuit against on Sunday and will not withdraw it in an effort to keep mounting pressure on Abbott. He called the ruling a win for Texas children and a sign of relief for parents.

"This is excellent," Bostwick said. "It doesn't matter who wins in this situation, if one lawsuit works then all of the children of Texas benefit."

Brian Lopez contributed to this report.

From The Texas Tribune

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