For Those Of You Trying to Keep Score

Local health officials don’t have the authority to close schools as a preventive measure, Texas Attorney General Ken Paxton said today. His statement contradicts what the Texas Education Agency has told schools. https://t.co/ybpvXWAiAv

— Texas Tribune (@TexasTribune) July 28, 2020

Up is down.  Black is white.  Who's on first?  I don't know's on third.  Nobody's rounding home.  And the parents, teachers, staff, and children of the public schools of Texas, lose.  Game over, man.  Game over.

So here's where we are now:

On July 9, the Texas Education Agency (TEA) said schools could close and not lose state funding if local health authorities told them they had to close to prevent the spread of the coronavirus.  This, of course, is very important.  But comes now the indicted Attorney General of Texas to say health departments don't have this authority.  And now schools can lose their funding if they follow the local health authority and delay or refuse to open classrooms.

Which is a bit of a wrinkle in Harris County, where the County Judge, not the local health authority, issued the order to keep schools closed until October.  It is, frankly, a poorly reasoned letter on that ground alone, as it lumps the Harris County order in with other county orders, which may or may not have been promulgated by county commissioner's courts rather than simply be the edicts of county health authorities.  Or maybe counties can't rely on health authority reports as the basis for actions?  That's even more ludicrous.

You can read the letter for yourself, but allow me to fulminate.  First, the letter points out Texas law allows "control measures" to be imposed for "disinfection," "decontamination," "quarantine," "preventive therapy," and "prevention."  That's a portion of the list cited from the Health and Safety Code.  You have to be a pie-eyed fool not to realize that list is meant to suggestive, not inclusive or exclusive, and to cover any contingency that might arise without being specifically mentioned in the Code.  Like, oh, a pandemic that has already killed over 5700 people in Texas, and for which over 9800 are still hospitalized.  But since the word "Pandemic" doesn't appear in that list, I guess it's not covered.

No, seriously; that is the AG's "legal opinion."

First, Section 81.084 provides that the Department or a local health authority may quarantine property only if there is “reasonable cause to believe that property . . . is or may be infected or contaminated with a communicable disease[.]”

"May be" in that clause may not, says the AG, be read as "will be," even though it certainly will be.  And by which time, it won't matter, will it?  We can't close the barn door UNTIL the barn is burned down.  Sure, what else could the Lege have meant?

I mean, language clearly meant to give authority to respond to a crisis without making the crisis a permanent state of affairs, is now read to say we CAN'T respond to a crisis until we are certain everyone has been exposed or infected, because "reasons"!  (I am not making this up.)

Second, even when there is such a reasonable belief, the period of quarantine is limited. Section 81.084 restricts the duration of a quarantine to “the period necessary for a medical examination or technical analysis of samples taken from the property to determine if the property is infected or contaminated.” If the property is not infected or contaminated, the quarantine must be removed. If the property is found to be infected or contaminated, the health authority must remove the quarantine and return control of a property if technically feasible control measures to disinfect or decontaminate property are effective.

Do you still think I exaggerate?  You underestimate the mendacity of the Texas AG:

Similarly, section 81.085 empowers the Department or a local health authority to impose an “area quarantine coextensive with the area affected” by an outbreak of communicable disease.17 Like a property quarantine under section 81.084, an area quarantine requires at least “reasonable cause” to believe that “individuals or property in the area may be infected or contaminated with a communicable disease.”18 Therefore, like a property quarantine, an area quarantine may not be imposed for purely prophylactic reasons. To the extent a local health authority seeks to employ section 81.085 to order closure of a school, the authority would need to demonstrate reasonable cause to believe the school, or persons within the school, are actually contaminated by or infected with a communicable disease.

Clear now?  We can't put out the fire until the building has burned down, because until then we don't have a "reasonable cause" to think the fire is burning in the neighborhood of the building.

No, they won't stop there, and you can't make them:

Even then, local health authorities would be wrong to rely on section 81.085 to quarantine individual parcels of property. That provision states that, “If an outbreak of communicable disease occurs in this state, the commissioner or one or more health authorities may impose an area quarantine coextensive with the area affected.” “Coextensive” means to the exact extent.

Again, "coextensive" in the Code is meant to limit the quarantine area to an area necessary to contain the contagion.  In the case of a pandemic, however, "coextensive" can reasonably reach to the county line; or in the case of the "Houston area," the non-coterminous boundaries of 19 counties.  But to the AG, "coextensive" means you can't treat the city, or the building; because you can't act to stop the spread of the contagion (the point of a quarantine) until you can prove there is a need for the quarantine.  Well, we have that, of course, in almost every county in Texas.  But until the children are sick at school, there's nothing we can do.  And even if they are, we have to reopen ASAP, because we can't let the tyranny of public health impair our God-given right to expose ourselves and our children to a rampant and life-threatening disease, because the AG says Texas law says so!

There's a reason these letters are "non-binding."  Because even a JP (who doesn't have to be a lawyer) would laugh such reasoning out of court.  And if, after all that, you think the AG is not determined to come to a pre-decided outcome, let me remove any further doubts:

In this context, the “outbreak of communicable disease . . . in this state” is most naturally read to apply generally to the COVID-19 pandemic, not to infections occurring in individual buildings or locales. That is particularly true given that chapter 81 includes a separate provision for quarantining specific property.

Yes, we have a pandemic!  No, there's nothing we can do about it!  Suck it up, people!  The law is a ass!  Or at least the lawyers at the Texas AG's office are.

This is a fucking parody of legal reasoning.

And I still question their reasoning because they continue to rely on the authority of "local health authorities" which is not a term coextensive (hem hem) with County governments:

Finally, a local health authority may not impose an area quarantine until it consults with the Department, and it must give written notice to and consult with each affected county and municipality.

As I said, the order in Harris County was issued by the County government, not by the County health department.  Because it rests on the advice of that department it is illegal?  That's crap legal analysis, too.  (They do expand their reach to include any local county authorities, but only after refusing to be that sweeping in their argument until the end.  Any competent judge would notice the sleight-of-hand there and wonder why they tried to pull it off so clumsily.)

Honestly a first year law student could write a better interpretation of statutory language.

And, of course, it sets the fox among the chickens again as coronvirus cases rise across the state (more in some areas than others) and school opening dates originally set for 3 weeks from now and postponed until October return.  I presume the school districts can close schools if infection strikes the staff and faculty and children.  After the barn has burned down, in other words.

AWKWARD INTRUSIVE UPDATE:

Texas Tribune has added comments from one County, as follows:

Dallas County Judge Clay Jenkins, whose county is among those with a mandate to close schools, said local officials will continue to make decisions to keep students safe "regardless of what opinion General Paxton comes up with."

"The only way that it would really screw things up is if Abbott tried to take away the control from the local groups," Jenkins said.

Local officials are sick of getting whip-sawed, and Abbott is so far showing no interest to poke his nose into this hornet's nest.  I think the Judge is right (he's a county official, not a law judge, just to clarify):  Paxton's opinion means bupkis, and should be treated as such.

God-damn! I'm glad my daughter is too old to be in school.  The people in charge of this state are the biggest bunch of clowns I've ever had the misfortune to live around.  And I've known some real clowns in my time.

Speaking of clowns:  this is Texas, why not stir some racism into it?

“Why not #openschools, end universal mandates, target vulnerable & check those from #Mexico?” Ginn tweeted. He juxtaposed his tweet with a GIF of Prince Harry, of Wales, miming a mic drop.

After @TexasDSHS corrected inaccurate reporting & updated demographics of #COVID19 deaths:

1) 7-day avg deaths peaked on July 14
2) Mostly elderly & Hispanics dying
3) Very few kids die

Why not #openschools, end universal mandates, target vulnerable & check those from #Mexico? pic.twitter.com/mZF8LQolO9
— Vance Ginn (@VanceGinn) July 28, 2020

I'm assuming that was a tweet that was removed, since the Texas Tribune only has the text, not the tweet.  Ginn is "the chief economist for the Texas Public Policy Foundation."  He seems nice.  Apparently dead Hispanics is no reason to worry, and as "Very few kids die," it's not a problem to expose them, huh?  And we peaked on July 14, so it must all be downhill from here, huh?  (well, deaths peaked, not cases.  But deaths are all that matter, right?  Except when it's Hispanics, old people, or not "too many" (?) kids.  Apparently.)

Again, do these people understand how contagion works?  Or the long-term damage some who survive covid-19 suffer?

Ginn insists his tweet was “woefully taken out of context out of bad faith.”  See, it's not his fault what he said, it's your fault for what you thought he said! (He did apologize for the GIF, but not for the content.)

Nice work if you can get it.

Almost 53% of public school students were Hispanic in 2018-19 and more than 60% are economically disadvantaged, according to Texas Education Agency data. Public health experts have said schools that reopen in areas with high and fast-rising rates of community spread are likely to exacerbate the effect of the virus. That means staff and students could bring the virus home to their families.

Well, they probably won't die, and besides they're not white, right?  I'm trying not to take his remarks out of context out of bad faith again, but it's pretty clear this is a very racist analysis.  Wait a minute, I think I've figured it out:

Ginn, who previously served in the White House under President Donald Trump's administration as associate director for economic policy at the Office of Management and Budget, also served as senior economist for the think tank.

Yeah, they are the least racist and the most misunderstood people, aren't they?