Texas considers options after federal judge overturns Texas’ mask mandate ban

Attorney General Ken Paxton says he’s considering all legal avenues to challenge a ruling issued by a federal judge who overturned Texas' ban on mask mandates in schools.

The mask mandate fight comes amid a heightened campaign season where Gov. Greg Abbott is under fire from Republican challengers over a swath of COVID-related executive orders he issued that they argue were unconstitutional.

U.S. District Judge Lee Yeakel ruled on Wednesday that Abbott’s latest mandate prohibiting schools and government entities from requiring children to wear masks in order to attend in-person instruction violates the the Americans with Disabilities Act because it prevents "disabled students’ access to public education."

To date, Abbott has issued three executive orders specifically related to facial covering mandates. Shortly after he issued the first mandate, he was sued by several plaintiffs represented by Houston-based attorney Jared Woodfill. Woodfill maintains that Abbott's executive orders that change laws without input from the legislature are unconstitutional and fall outside of the scope of the 1975 Texas Disaster Act.

Earlier this year, Woodfill called on the legislature “to remove Abbott’s unlimited power and amend the Texas Disaster Act. We cannot allow Abbott or any other elected official to act as a king. Despite pleas from his constituents and other legislators, Abbott continues to ignore the Constitution and go at it alone.”

In March of last year, Abbott first declared a state of emergency and shut down the state, delineating businesses as essential and nonessential, forcing millions of Texans out of work. Initially saying he wouldn’t implement a mask mandate as a condition of receiving services in the state, he did on July 2, 2020. The mandate included exceptions for children under age 10, for those with medical conditions, and those eating, drinking or exercising outdoors. On March 2, 2021, Abbott rescinded the mask mandate when he ended the statewide shutdown and fully reopened Texas.

Two months later, he issued another order, which went into effect May 21, 2021, stating that Texans cannot be required to wear a mask in buildings or properties that receive government funds. Now, instead of those who don’t wear masks facing fines, as in the first order, government entities that impose mask mandates would be fined.

Beginning May 21, local governments or officials who attempted to impose a mask mandate or a limitation that conflicted with the governor’s order could be fined up to $1,000. And, as of June 4, no student, teacher, parent or other staff member or visitor could require anyone to wear a mask while on campus, unless Abbott changed the policy by issuing another order.

Several Democratic County judges said they wouldn’t comply and sued the state, as did several school districts and local government officials.

But as the mask fight worked through the courts, school districts that didn’t comply with Abbott’s latest order were first given warnings by Paxton’s office, which sued noncompliant entities.

Yeakel’s decision prohibits Paxton from suing school districts that defied the order and are still requiring students to wear masks during in-person instruction.

In response to Yeakel’s ruling, Paxton tweeted, “I strongly disagree with Judge Yeakel's opinion barring my office from giving effect to GA-38, which prohibits mask mandates imposed by government entities like school districts. My Agency is considering all legal avenues to challenge this decision.”

The reversal of the facial covering mandate, Abbott said, was because "the Lone Star State continues to defeat COVID-19 through the use of widely-available vaccines, antibody therapeutic drugs, and safe practices utilized by Texans in our communities."

Reversing course from his previous statements, Abbott argued, "Texans, not government, should decide their best health practices, which is why masks will not be mandated by public school districts or government entities. We can continue to mitigate COVID-19 while defending Texans' liberty to choose whether or not they mask up."

The issue of mandates has been a bone of contention among conservatives challenging the incumbent Republican in the next election.

In March 2020, Abbott said he issued the first executive order based on the expertise of some medical experts and health advisors, and shut down the state with no input from the legislature, which his challengers argue was unconstitutional. He also ignored calls to hold a special session by state legislators and others asking him to do so, prompting some to run for office.

One of them, Republican challenger Don Huffines, a former state legislator and Dallas-area businessman, called on Abbott to prioritize legislation during the regular legislative session and three special sessions to prohibit local governments, including public colleges and universities, from imposing mask mandates or requiring COVID-19 testing. He also called on the governor and Republican-led legislature to pass legislation prohibiting all entities, public and private, from requiring COVID-19 vaccination as a condition of employment or obtaining service.

Despite Abbott’s claim that the legislature would address vaccine passports, it did not.

Another challenger, former congressman and retired Army Lt. Col. Allen West, vehemently opposes mandates, which he refers to as edicts that have created a constitutional crisis in Texas.

West, who participated in protests last year against the state shutdown, maintains, “We don't live in a constitutional monarchy. We live in a constitutional republic.”

West, who contracted COVID-19 and received the vaccination, maintains, “As Governor of Texas, I will vehemently crush anyone forcing vaccine mandates in the Lone Star State. … Our bodies are our last sanctuary of liberty and freedom, I will defend that for everyone …”