“Where’s The Fire?”

Austin and Travis County officials can continue enforcing their mask mandates after a district judge delayed action on the Texas attorney general’s request to immediately stop the mandates.

A trial is set for March 26. https://t.co/In3ltBJQSx

— Texas Tribune (@TexasTribune) March 13, 2021

The legal analysis you get from me is worth the money you pay for it. But I think, as my Torts professor said lo those many decades ago now: “Change the facts, change the outcome.” And the facts have changed.

Abbott has statutory authority in an emergency to set the parameters of government response. The courts have held that authority supersedes local (county and city) authority. Which makes sense when the Governor is setting a uniform policy. But when the governor says the emergency has passed, by what authority does he still dictate what local authorities can do? Abbott’s ban on any county requiring masks seems to exceed both the statutory and constitutional powers of the governor of Texas.

There’s no question governments have broad powers to protect public health. That’s a bedrock Constitutional issue. Texas law authorizes such protections, and I don’t see where even the statute giving the Governor emergency powers makes the holder of that office a diktator in charge of all county and city officials (but not schools?). In other words, the legal issue during the emergency is: who decides? That’s during a statewide emergency. Abbott has now said that emergency has passed. So what authority does he have if Travis County says they perceive an emergency in their county, for their residents? If the statewide emergency has passed, what authority does the Governor now wield? He acts for the state, but the counties have separate legal authority. If he says there’s no emergency, how does he still rule them?

The judge denied Paxton’s request for a TRO because the two weeks until a hearing on a temporary injunction won’t cause irreparable harm to the State. I think already the solid legal grounds Paxton thought he stood on are getting sandy. I can’t pretend to know what the judge is thinking, or will think. But I think the facts have changed, and that should change the outcome. If the court doesn’t think there’s extreme urgency in this case, it could mean the court doesn’t think there’s an emergency any more, either.