Texas Supreme Court: Mask mandate challenges must go through regular appeals process

The Texas Supreme ruled late Thursday that cases related to Gov. Greg Abbott’s executive order prohibiting local governments and school districts from issuing mask mandates must go through the appeals process, and declined to void three temporary restraining orders issued by Travis

Updated: August 20, 2021 - 11:00pm

The Texas Supreme ruled late Thursday that cases related to Gov. Greg Abbott’s executive order prohibiting local governments and school districts from issuing mask mandates must go through the appeals process, and declined to void three temporary restraining orders issued by Travis County Judge Jan Soifer.

The ruling is a temporary setback for Texas Attorney General Ken Paxton’s office, who on Monday asked the high court to cancel Soifer’s restraining orders.

The legal battle will continue after several Democratic county judges bucked Abbott’s executive order as well as numerous school districts that implemented mask mandates with associated penalties as students returned to school.

Abbott maintains that under his executive order, “no governmental entity can require or mandate the wearing of masks. The path forward relies on personal responsibility – not government mandates. The State of Texas will continue to vigorously fight the temporary restraining order to protect the rights and freedoms of all Texans.”

Paxton put all Texas school districts on notice, defending the executive order in court. He says the order “is crystal clear … No governmental entity – which includes counties, cities, and school districts – may require mandating the COVID-19 shot, the showing of vaccine passports, COVID-19 related limitations, or mask mandates. ”

The all-Republican Supreme Court told Paxton’s office that the state couldn’t bypass an intermediate appellate court, meaning Paxton must now take the challenge to the Third Court of Appeals, where five of six judges are Democrats. Once the court rules, whichever side loses will then appeal.

On Sunday, Soifer granted restraining orders requested by Harris County, the Southern Center for Child Advocacy, and eight school districts, seven of which are in South Texas and one in the Dallas area.

Soifer’s hearings, scheduled for next week, begin Monday to address a lawsuit related to Travis County schools and eight school districts, which now includes 11 additional districts, including Austin, Dallas and Houston.

Wednesday's hearings will address the statewide order and the Harris County order.

Once Soifer likely grants injunctions to the plaintiffs to block Abbott's order, Paxton will then appeal to the Third Court of Appeals. Whichever way that court rules also will likely be appealed by the losing party.

On Thursday, Abbott and Paxton lost another case in the San Antonio-based Fourth Court of Appeals, which granted the requests of Bexar County and San Antonio, allowing them to enforce mask mandates in public schools. Paxton’s office has already appealed the case.