Attorneys for a group of Texas school districts seeking an injunction against Gov. Greg Abbott’s ban on face mask mandates argued Tuesday that the ban goes against the grain of the Texas Constitution.
“The governor has represented to the court and to the public that during this disaster he has vast powers”… including “the power to make law, to suspend law. … It is not an exaggeration to say that the governor’s view of the Texas Disaster Act essentially asks this court to declare him a constitutional dictator in Texas, and that is not the law,” David Campbell, an attorney for several large school districts, told Travis County state District Judge Catherine Mauzy at a hearing about Abbott’s prohibition against mask mandates.
Campbell, noting the separation of powers, said the Texas Legislature delegates certain powers to the governor in the disaster act but that it does so in a selective, measured way. He said Article 1, Section 28 of the Texas Constitution declares that only the Legislature can suspend laws in Texas, yet Abbott, in Executive Order GA 38 attempts to “reach out and snatch the authority” of school districts to control the safety of their students and staff in district buildings.
“That’s the only thing the school districts are trying to do in this case. We are only trying to exercise the same rights that private property owners have across Texas to adopt reasonable masking requirements to protect our students and protect our staff,” Campbell said.
Kimberly Gdula, an attorney representing Abbott, said over the course of the COVID-19 pandemic, Texans had received a crash course in “what mitigation efforts work and what may not work” to fight the virus.
“GA 38 is Governor Abbott’s recognition that Texans know how to fight the spread of covid and to be personally responsible for their own health. Obviously, plaintiffs and interveners disagree with Gov. Abbott’s assessment of the people of Texas. That is absolutely their right, But their policy disagreements do not give them the right to violate Texas law,” Gdula said.
“I can understand their desire to turn this discussion into a policy debate because the law is not on their side. But this is a court of law, not a court of public opinion, and today the question before the court is who is in charge of the state’s response to a statewide disaster. The legislature has answered that question with the Texas Disaster Act, and that act vests the governor with the responsibility and authority to protect the citizens in time of crisis. To ensure that the governor can meet that meaty task, the Legislature gave him broad powers.”
At that point, Mauzy stopped Gdula, saying, “the Legislature has given the governor the authority to protect Texans. I have heard no evidence whatsoever that the portion of the governor’s order prohibiting school districts from issuing mandates in any way protects Texans.”
Gdula then referred to a case earlier in the pandemic where parties held that only executive orders that alleviated the threat of COVID-19 are acceptable under the Texas Disaster Act. She said the Supreme Court held then that Gov. Abbott’s executive orders are allowed to be motivated by more than just the desire to alleviate the threat of COVID-19.
The hearing concluded with Mauzy saying she was to hear two more challenges to Abbott’s mask mandate ban on Wednesday and that she would be careful to consider all sides when making a ruling.
