Abbott And Dems Go At It In Legal Fights Over Masking As GOP Lawmakers Ignore Delta

Gov. Greg Abbott is hell-bent on fighting local mask orders.
Gov. Greg Abbott is hell-bent on fighting local mask orders. Screenshot
A rational person might think that the worsening spread of COVID-19 triggered by the insanely contagious Delta variant that’s left Texas hospitals on teetering on the edge of catastrophe would be the number one thing the Republicans who control all the levers of Texas government would be focused on right now, especially given the imminent return of millions of Texas children — many of whom are under 12 and ineligible for a coronavirus vaccine — to classrooms across the state.

Instead, Gov. Greg Abbott, Attorney General Ken Paxton and their GOP allies in the Texas House and Senate are more focused on preventing government officials from issuing mask mandates that would protect more Texans from the most troubling strain of the coronavirus we’ve seen thus far.

And instead of using the second straight session of Texas legislative overtime to pass new laws to protect vulnerable Texans amid one of the worst coronavirus surges of the pandemic, House Speaker Dade Phelan and Lt. Gov. Dan Patrick are still laser-focused on "election integrity" legislation. State Republicans are now in round three of pushing for their election bill, which House Democrats claim would put so many unnecessary barriers in place for disabled and minority Texans to vote that they've been able to rally enough of their colleagues to stay out of Austin to prevent the House from passing any legislation at all.

While the Texas House still lacks the required 100 members needed to conduct business thanks to all the Democrats who are still AWOL (though that number has shrunk in recent days), the Texas Senate successfully passed its latest version of the controversial election bill chock full of new penalties and restrictions they claim will make it “harder to cheat” at the ballot box in Texas, despite the fact that no evidence of widespread voter fraud in the Lone Star State has surfaced.

State Sen. Carol Alvarado (D-Houston) tried to slow down the inevitable passage of the GOP-led Senate’s latest election bill with a 15-plus hour filibuster she began Wednesday evening, during which she spoke at length about the alleged injustices the bill would codify into law, all while not being allowed to eat, drink, sit or even lean on her desk for support.

As she wrapped up her speech Thursday just before 9 a.m., Alvarado argued that “Voter suppression anywhere is a threat to democracy everywhere.”

“As we draw this discussion to an end, it is my sincere hope that civil acts by everyday Texans — from the Senate floor to the ballot box — can help to shed light on all important issues,” Alvarado continued. “What do we want our democracy to look like? Do we want our state to be more or less inclusive?”

“As we draw this discussion to an end, it is my sincere hope that civil acts by everyday Texans — from the Senate floor to the ballot box — can help to shed light on all important issues. What do we want our democracy to look like? Do we want our state to be more or less inclusive?" - State Sen. Carol Alvarado (D-Houston)

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Minutes after she finally rested, the Senate’s Republican majority answered those questions by finally voting to approve the controversial election bill once again, which like all three other attempts will be stuck in legislative limbo unless enough House Democrats show up to allow the house the two-thirds quorum needed to pass and approve laws of its own.

To speed that effort along, Texas House Speaker Dade Phelan earlier this week signed 52 civil arrest warrants allowing state law enforcement to track down any Democrats in Texas who haven’t yet reported to the Capitol (of the original 57 quorum-breakers who fled Austin for Washington, D.C. during the first special session in July, only 26 remain out of state and out of the reach of Phelan’s orders).

One Texas Democrat who’d returned home earlier in the week, state Rep. Gene Wu (D-Houston), responded to the news an arrest warrant had been issued for him by busting open his lawyerly toolbox. An attorney by trade, Wu on Wednesday filed an application for a writ of habeas corpus in the 230th District Court of Harris County. The district judge granted the writ which (for all of us who didn’t attend law school) means that Wu is temporarily protected from being detained and hauled back to Austin as Phelan has ordered.

In a statement Wednesday, Wu said “My legal counsel and I are working on granting the same protection for my fellow Texas House Democrats breaking quorum,” and vowed he and his fellow absentee Democrats will “continue to fight with everything we have to stop Texas Republicans’ efforts to undermine your freedom to vote.”

Sure enough, the Texas Tribune reported Thursday afternoon that three state district judges in Houston had signed orders of their own to temporarily protect 43 additional Texas Democrats in addition to Wu. Paxton vowed on Wednesday to fight against Wu’s order in an interview with conservative Lubbock talk radio host Chad Hasty.

Wu and his fellow Dems’ gambits to evade Phelan’s arrest order are far from the only legal battles being waged by Texas’ minority party. On Wednesday night, Fort Bend County Judge KP George, a Democrat, sued Abbott and the state of Texas in district court to block Abbott’s executive orders banning local officials and school boards from issuing mask mandates.

“As a parent of public school educated children, as the husband of a longtime Fort Bend teacher, and as a former Fort Bend ISD School Board member, it saddens me that today, children in our community’s largest school district returned to the classroom without the ability of their leaders to employ the necessary tools, including requiring face coverings to keep our children and their teachers safe,” George said in a statement Wednesday night.

The district court judge granted George’s request and issued a temporary restraining order against Abbott’s ban on mask requirements. George then followed suit late Wednesday by issuing an order that everyone in any Fort Bend County school or county facility must wear a face mask. Fort Bend County now joins the ranks of Dallas and Bexar counties, whose county judges issued similar orders based on similar lawsuits against Abbott of their own.

Waiting for their school buses on Thursday morning, many Fort Bend ISD students were seen standing along the sidewalk with face masks firmly affixed; whether their facial wardrobe was determined by their concerned parents or in response to George’s order was unclear.

However, the district itself, in defiance of George's order and in keeping with the governor's , has said it is not mandating masks in its buildings for students, employees or visitors, although it is encouraging their use.

After Harris County Commissioners Court's Democratic majority led by County Judge Lina Hidalgo voted earlier this week to authorize County Attorney Christian Menefee to issue a lawsuit of his own to block Abbott's mask orders, Menefee went ahead and did just that Thursday afternoon.

In a statement, Menefee claimed that Abbott "has repeatedly misused his authority under Texas disaster laws." He argued that "The current wave of the Delta variant presents a real and imminent threat to our most vulnerable populations, and local officials need to be able to respond to this crisis."

Prior to Harris County's lawsuit, Houston Mayor Sylvester Turner flouted Abbott last week by requiring all city employees to wear masks when at work, and Houston ISD Superintendent Millard House II announced Wednesday that he’s ordered HISD to implement a mask requirement of its own for all students and staff on district campuses, buses and other facilities with a supporting vote on that from trustees expected at Thursday night's board meeting.

Clearly frustrated by the growing number of large counties and school districts bucking his anti-mask requirement orders — nearly all of which are in Democratic enclaves — Abbott and Paxton on Wednesday filed a petition in the Fifth Circuit Court of Appeals to strike down the mask order issued earlier this week by Democratic Dallas County Judge Clay Jenkins, clearly hoping the court would set a precedent by which other recently-issued mask mandates could be overruled.

To Abbott's credit, earlier this week he requested that state hospitals voluntarily postpone elective surgeries to free up more hospital beds for sick coronavirus patients. He also directed the Texas Division of Emergency Management to open up more COVID-19 antibody infusion treatment centers across the state with the hopes of treating infected Texans before they get so sick they need to be hospitalized. He continues to stress the importance of getting vaccinated as the number one way Texans can protect themselves and their loved ones from the coronavirus (but always with the caveat that COVID-19 vaccines will never be mandatory in the Lone Star State).

While he's right that mass vaccination would be the quickest way out of the pandemic for Texas, it seems Abbott has decided that simply recommending vaccines and adding few new antibody treatment centers are all he's willing to do to fight the Delta-wave. Even though public health experts around the world are hoarse from stressing that increase masking would undoubtedly slow the virus' spread, Abbott hasn't given any sign he'll bend to calls to soften his stance on mask rules.

“The path forward relies on personal responsibility — not government mandates,” Abbott said in a statement following his request to overturn Dallas County's mask requirement. “The state of Texas will continue to vigorously fight the temporary restraining order to protect the rights and freedoms of all Texans.”

But exactly how many of those Texans whose rights Abbott and Paxton are so arduously fighting to defend will end up hospitalized with rough bouts of Delta-induced COVID-19 while these legal battles play out is anyone’s guess.
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Schaefer Edwards is a staff writer at the Houston Press who covers local and regional news. A lifelong Texan and adopted Houstonian, he loves NBA basketball and devouring Tex-Mex while his cat watches in envy.
Contact: Schaefer Edwards