Breaking News: San Antonio has obtained a Temporary Restraining Order to mandate masks in schools!

This blog post was co-written by Ryan Reiffert, San Antonio business and estate planning attorney, and Ishika Patel, an intern at Law Offices of Ryan Reiffert, PLLC

Today brings San Antonio some breaking news in the COVID-19 saga. Local businesses and business owners will want to take note, as developments in the near future may become relevant to them. Historical Background As you may recall, in In May of this year, Governor Greg Abbott issued an executive order prohibiting “governmental entities” from requiring or mandating masks, as well as banning public schools from enforcing mask guidelines past June 4th, leading many to believe that the upcoming school year would be mask free. The retribution for disobeying these orders included a fine of up to $1000, which is a threat that overshadowed health concerns for many. While this mandate was controversial for many, the other side of the coin, as explained by Governor Greg Abbott was that “Texans should decide their best health practices, not the government.” Texas has also passed a law designed to punish businesses that require proof of COVID-19 vaccination (in the so-called “vaccine passport” debate), subjecting them to loss of state contracts, licenses, operating permits, etc. Governor Abbot elaborated upon this decision stating that “Texas is open 100%, and we want to make sure [people] have the freedom to go where [they] want without limits”. This was yet another piece of controversial legislation, with, on the one hand, many Texans frustrated over health concerns, which they believe should be the Governor’s main priority, and on the other hand, many Texans who feel that the Governor did not act swiftly enough to stop various entities from requiring masks or vaccinations. Against this backdrop of controversy and Texas policies designed to thwart mask mandates and discourage businesses from requiring proof of vaccination, the “Delta” variant of COVID-19 emerged from India. The Delta strain of COVID-19, while not especially more lethal or deadly in the individual case, is significantly more contagious than the original strain of COVID and its previous variants, and has been spreading like wildfire across the United States in recent weeks, particularly in Texas and Florida. Add to this already combustible mix the observation that it is now August, and… just like every August, school will be starting again soon. Many children are unable to be vaccinated under the guidelines of the vaccines, and “kids are germ factories” is a joke-but-really-not-a-joke among parents for a very good reason. This is, of course, a recipe for disaster. San Antonio Files a Lawsuit The City of San Antonio and Bexar County were especially concerned with this possibility, and the possibility of harm to our teachers as well as the possibility of an uncontrolled infection among students and young people who not only could suffer themselves, but also could pass the Delta variant on to elderly or other vulnerable populations. Keep in mind, as well, that school is compulsory – unvaccinated young people may not decide to absent themselves from school due to the risk of COVID from unmasked persons. Accordingly, City and County leaders filed a lawsuit on Tuesday morning to enjoin Governor Abbott from enforcing his “no masks” executive order and seeking to return power to local officials in Bexar County and San Antonio. The City of San Antonio and Bexar County also asked the judge to grant a temporary restraining order (TRO) – a short-term emergency measure meant to protect the status quo while the court rules on the merits of the lawsuit – and the TRO was granted! The judge noted “I don’t do this lightly.” What does this mean? It means that for at least the next few days (and possibly beyond that) San Antonio and Bexar County can mandate masks in various places – and they have swiftly moved to use that power already for schools and public buildings. Whether this lasts beyond the next few days will be determined in court. The court scheduled a hearing for a temporary injunction this coming Monday. Governor Abbott’s Press Secretary issued the following statement:

Governor Abbott’s resolve to protect the rights and freedoms of all Texans has not wavered. There have been dozens of legal challenges to the Governor’s executive orders—all of which have been upheld in the end. We expect a similar outcome when the San Antonio trial court’s decision is reviewed by the appellate courts.

The City of Dallas and the City of Austin are also pursuing their own legal challenges to the Governor’s mask mandate. What’s the legal basis for this lawsuit? You didn’t think that we would write a whole blog article on this without discussing the basis of the lawsuit, did you? San Antonio and Bexar County make a number of claims to support their lawsuit, including:
  1. That Governor Abbott’s mask ban is ultra vires under the Texas Disaster Act of 1975.
If you’re not a speaker of Latin or an attorney, you may not be familiar with the phrase ultra vires. Literally, it means “beyond the power” – and in this circumstance, the argument is that the governor’s ban on local government mask mandates exceeds the power granted to him under the Texas Disaster Act of 1975. If this is correct, it matters not how well the Governor’s Executive Order is written (the first Executive Order, written back in 2020 contained, perhaps intentionally, a large loophole). If an action is shown to be ultra vires, it is to be treated as if it never happened, it is invalid, it is void ab initio (yes, more Latin – “from the start”). San Antonio and Bexar County argued that the Texas Disaster Act “gives the governor the authority to suspend statutes and regulations governing state officials and agencies, but not the statutes giving local governments the authority to manage public health within their own jurisdictions.” In other words, the City and County are attempting to say that, while the Texas Disaster Act allows the Governor to suspend some statutes and regulations, there are other statutes and regulations that he may not suspend, and that public health type rules are the latter. This argument is similar to the argument made by the City of Austin and Travis County related to their mask mandate.In that case, the City of Austin had at least some limited success, prevailing on the Temporary Injunction.
  1. In the Alternative, the City of San Antonio and Bexar County seek to invalidate the Texas Disaster Act of 1975
The argument is that the TDA violates two clauses of the Texas Constitution (Suspension Clause and Separation of Powers Clause). This argument seems like a long shot, but who knows? The Suspension Clause states that only the Legislature has the power to suspend laws in the State; the Separation of Powers Clause states that no branch of government can exercise the powers that belong to another branch, unless explicitly allowed to do so. Using these two clauses, this section attacks the reach of the power that the Governor has, as it claims that only the Legislature has the “nondelegable power to suspend laws”, and the Chief Executive cannot abridge these powers, which makes the TDA unconstitutional and void altogether. The City of San Antonio and the County of Bexar sought out a “temporary injunctive relief to restrain the enforcement of Executive Order 38’s prohibition on mask mandates against the City or County pending a final judgment.”. A temporary injunction was granted by the judge for San Antonio and Bexar County to issue mask mandates for schools, and a full hearing for a more permanent injunction is scheduled for Monday, August 16th, where they will decide the fate of the mask mandate in San Antonio. Mayor Ron Nirenberg leads this lawsuit and is passionate about protecting the city, as seen in an unofficial statement where he said: “unvaccinated kids shouldn’t be forced to gamble with their lives while the deck is stacked against them”. Could this Impact Businesses? In a word, yes. If the City of San Antonio is successful in its argument that public health powers may not be suspended by the Governor, due to the ultra vires nature of the Governor’s order vis-a-vis the Texas Disaster Act of 1975, this would empower the City of San Antonio to issue any number of public health regulations, not just mask mandates in schools and government buildings. That could very easily include the kind of “all businesses must require masks” public health guidance that characterized so much of 2020 in San Antonio. If you’re a San Antonio-area business owner, you definitely remember those regulations and city health inspections. Needless to say, depending upon what happens with the Temporary Injunction, it might benefit you to have a San Antonio business attorney on speed dial! Where to Get More Information We are actively monitoring the situation with the city. If you have any questions about what you can do to protect your business in this rapidly-changing situation, don’t hesitate to contact us.  

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