UPDATE: Bexar County judge grants temporary order on mask mandates in schools, city and county buildings

Update 3:30 p.m.: Bexar County Judge Antonia “Toni” Arteaga of the 57th Civil District Court granted the order filed by the county and city this morning.

“I wanted to specifically mention that this is a temporary restraining order,” Arteaga said. “I don’t mind letting you guys know that the affidavit by Dr. [Junda] Wu, our local public health authority, weighed heavily in my decision, as does the fact that the school year for many of our children, including those under 12, has begun. And those under 12 of course, as you know, don’t have access to the vaccine and they’re already in school. So I do find that this is emergent, I do find that it is necessary.”

The next hearing is scheduled for Monday.

Original story: 

SAN ANTONIO (KTSA News) — B exar County is following Dallas County’s lead is asking for the court’s help in imposing mask mandates locally.

San Antonio and Bexar County filed a lawsuit Tuesday in the State District Court in Bexar County asking for a temporary restraining order against Governor Greg Abbott “to prevent enforcement of the governor’s latest emergency order,” officials said in a press release. A similar lawsuit was brought before a Dallas County judge Monday night.

The lawsuit alleges Abbott was outside the scope of his authority when he codified the  July 29 executive order. Officials claim the executive order exceeds the Governor’s authority under the Texas Disaster Act of 1975, particularly related to public health laws imposed by the city and county. The lawsuit states that, if it were not for the executive order, officials would implement mask mandates for city and county employees, at all city and county-owned properties and in public schools.

The lawsuit reads that the statute used as the source of the Governor’s legal authority to impose the executive order gives Abbott the authority to suspend “a regulatory statute prescribing the procedures for the conduct of state business or the orders or rules of a state agency.” Local officials argue city and county’s workplace conditions and public use of city and county-owned properties are not considered state business, nor are the city and county considered state agencies. They also noted that it is not considered state business when a local public health authority prescribes procedures aimed at slowing the spread of the disease.

The lawsuit states that if the courts rule the Governor is within his power to suspend “any and all laws” that authorize the imposition of mask mandates through the Texas Disaster Act of 1975, then city and county officials will challenge the constitutionality of the 1975 law because “only the Legislature has the nondelegable power to suspend laws” through the Texas Constitution.

“We are challenging the governor’s authority to suspend local emergency orders during a crisis such as the COVID-19 pandemic,” said Mayor Ron Nirenberg. “Ironically, the governor is taking a state law meant to facilitate local action during an emergency and using it to prohibit local response to the emergency that he himself declared.”

If the order is granted, officials said the local health authority will immediately issue an order requiring masks in public schools and require unvaccinated students to quarantine if they come in close contact with someone positive with COVID-19.

Last month, the American Academy of Pediatrics recommended that children over the age of two wear masks when they go back to school, even if they are vaccinated.

The CDC updated guidance last week with similar recommendations, including universal indoor masking for all students, staff, teachers, and visitors to K-12 schools, regardless of vaccination status in addition to sitting students in classrooms at least three feet apart.

When it is not possible to maintain a distance of at least three feet, the CDC said layering prevention strategies such as screening testing, ventilation, handwashing and respiratory etiquette, staying home when sick and getting tested, contact tracing in combination with quarantine and isolation, and cleaning and disinfection are all ways to keep schools safe.

“As the school year begins, the health of our students, especially those under 12 who are not eligible to be vaccinated, are being put at risk. The pandemic is not over. We need to continue to utilize every tool we have to combat the very contagious delta variant. We have come too far to allow our students to be super spreaders and put more lives at risk,” said Bexar County Judge Nelson Wolff.

This story is developing and will be updated as details are made available.