Appeals Court Upholds Injunction Allowing Harris Co. Mask Mandate

HOUSTON, TX — The latest decision in a legal battle over COVID-19 mandates between Harris County and Texas Gov. Greg Abbott was a victory for the county.

The Texas 3rd Court of Appeals upheld an injunction from a lower court Thursday keeping in place Harris County's mask mandate, which has been challenged by Abbott and Texas Attorney General Ken Paxton.

Abbott signed GA-38 in late July 2021, an executive order that prohibits schools and government entities from requiring face coverings. Lawyers from the state argued that the executive order has authority under the Texas Disaster Act, but the appeals court disagreed.

"Based on the plain language of the Disaster Act, we do not agree that the provisions designating the Governor as 'commander in chief' and emergency-management directors as the 'governor’s designated agents' demonstrate that the Legislature intended to empower the governor with broad authority to preempt local orders," the court said in its decision.

The state also argued that because Abbott and Paxton aren't in charge of enforcing the order, they are not the proper entities to sue for injunction against GA-38. The court again sided with the county, citing multiple lawsuits filed by Paxton against entities going against Abbott's executive orders.

"The legal battle is not over," Harris County Judge Lina Hidalgo said in a news conference Thursday evening. "This issue has yet to go in front of the Texas Supreme Court. We fully expect the state to appeal this ruling. ... My message to superintendents, leaders and daycare centers, if you want to be responsible to continue requiring masks, ... you're within your rights to continue with these requirements."

The county is considering a change to its COVID-19 threat level to severe or "red," the highest designation Hidalgo can issue. The benchmark the county is eyeing for raising the threat level is the percentage of ICU beds occupied by COVID-19 patients, with 20 percent being the indicator. As of Thursday, just under 15 percent of ICU beds were occupied by COVID-19 patients, according to Harris County Public Health. The indicator for new cases already has risen to "red" levels at over 1,000 new cases per 100,000 population.

"Today is an important victory for public health and an important victory for local government," Harris County Attorney Christian Menefee said at the news conference. "What the courts continue to say is that the governor's power is not unlimited. The attorney general's power is not unlimited."