Thought Leadership

T&H Update on Texas Mask Mandate Lawsuits

Does all the Texas mask litigation have you dazed and confused? We wouldn’t blame you, as it seems a new lawsuit or legal decision is released almost every day. The attorneys of Thompson & Horton are working closely with school districts across the state to manage the ongoing changes, including defending school districts’ right to local control over decisions involving the safety of students and staff in the courts. Here is an update on the many legal battles raging across the state:

State of Texas Lawsuits Against Schools

The Texas Attorney General is suing 15 school districts to prevent the exercise of local control over mask requirement decisions in public schools. This is contrary to recent in-court representations by the AG that neither his office nor the Governor have legal authority to enforce limitations on local control in GA-38, the Governor’s Executive Order banning mask requirements. We proudly represent many of the school districts that have been sued. Several of those who have been sued are already in litigation with the State over the same issues. The matter is on appeal in the Third Court of Appeals in Austin and ultimately will be decided by the Texas Supreme Court.

Despite that pending action in Austin, in recent days the AG went to other courts around Texas—without notifying the school districts or their lawyers—to try to obtain temporary orders to stop school districts from exercising local authority. One court denied the AG’s efforts to get such an “ex parte” order. While the AG did obtain at least one such order when there was no one there to defend the school district, the State is now required to contact Thompson & Horton lawyers for the school districts we have advised the AG’s office we represent.

Federal Lawsuits Under Disability Rights

A federal judge in Austin recently ruled against Disability Rights Texas in another legal challenge to GA-38’s prohibitions on mask requirements. The advocacy group filed a lawsuit, E.T. v. Abbot, Case No. 1:21-cv-717-LY, in the Western District of Texas, Austin Division, in August on behalf of 14 students with special needs challenging the Governor’s Executive Order. The group claimed GA-38 puts students with disabilities at risk and violates the Americans with Disabilities Act. The group asked the court to block enforcement of the mask provisions of GA-38 pending a trial.

At a hearing this week, the trial court sided at least initially with the Governor, denying the request for a temporary order restraining GA-38. The court has not provided written reasoning for the decision at this time. The court highlighted that it intends to fast track the case, however, setting a trial date for October 6, 2021. At the trial, the court will use a less-exacting standard than the one used in Wednesday’s hearing, meaning that it remains to be seen if the Court will side with Disability Rights Texas or the Governor on the issues.