On July 29, 2021, Governor Abbott issued Executive Order GA-38 relating to the continued response to the COVID-19 disaster. The order provided requirements and guidance regarding testing, vaccines, and operating limits for businesses and other establishments. GA-38 also incorporated an earlier executive order that banned local governments from issuing mask mandates at schools and municipal buildings. In response, several of Texas' largest counties filed lawsuits challenging GA-38 and seeking permission from the courts to issue local orders.
Bexar County
On August 10, 2021, the City of San Antonio and Bexar County obtained a temporary restraining order halting the Governor's ban on local authority. In accordance with the TRO, the Bexar County Local Health Authority issued a health directive requiring face masks in both public and private schools for all students ages 2 and older, staff, teachers, and visitors to K-12 schools regardless of vaccination status.
Bexar County Judge Nelson Wolff issued Executive Order NW-21 mandating compliance with the Local Health Authority's Health Directive. NW-21 also requires all employees and contractors, visitors, and members of the public to wear a face covering when entering Bexar County buildings and facilities and throughout their visit unless the contractor, visitor, or member of the public has a medical condition or disability that prevents wearing a face covering. Bexar County employees are required to wear face coverings when entering Bexar County buildings and other facilities and must do so whenever it is not feasible to maintain six feet of distance.
NW-21 further requires all commercial entities in Bexar County providing goods or services directly to the public to continue to post and implement a Health and Safety Policy as previously required. Under NW-21, commercial entities are not required to adopt any specific risk mitigation measures, but must post their Health and Safety Policy in a conspicuous location sufficient to provide clear notice to all employees, customers, and visitors of any health and safety requirements implemented, including any policy on wearing a face mask.
The local orders have no impact on most privately owned businesses or establishments, other than private schools, that are not owned by the City of San Antonio or Bexar County except that the orders require businesses to adopt and post a Health and Safety Policy.
- Nursing homes, state supported living centers, assisted living facilities, and long-term care facilities are required to follow guidance from the Texas Health and Human Services Commission.
- NW-21 directs long-term care facilities and dialysis facilities to follow all additional CDC guidance to take proactive steps to protect the health of residents and preserve the healthcare workforce by identifying and excluding potentially infected staff members, conforming to visitation requirements specified by other relevant orders, ensuring the early recognition of potentially infected patients, and implementing appropriate infection control measures.
- Landlords, owners of residential property, and others seeking to pursue eviction or other possessory action related to residential real estate must comply with any order of the Supreme Court of Texas.
NW-21 is effective as of 12:01 a.m. on August 11, 2021, and will continue until 14 days after termination of the statewide public health emergency unless otherwise extended, modified, or terminated.
The TRO permitting the Health Directive and NW-21 remains in effect until a hearing on the temporary injunction request, which is set for Monday, August 16.
Dallas County
After Dallas County reported more than 3,000 new COVID-19 cases in a three-day period, County Judge Clay Jenkins filed a counterclaim in a suit initially brought by Dallas County Commissioner J.J. Koch against Judge Jenkins in his official capacity, seeking a temporary restraining order and declaratory judgment to hold portions of GA-38 regarding mask mandates unenforceable. On August 10, 2021, Judge Tonya Parker granted the TRO enjoining the Governor from banning local mask requirements.
Under the TRO, Judge Jenkins is authorized to take certain actions as provided in the Texas Disaster Act to protect Dallas County residents. The TRO remains in effect until a hearing on the temporary injunction request, which is set for Tuesday, August 24.
On August 11, 2021, Judge Jenkins issued an emergency order requiring all childcare facilities and PreK-12 public schools to develop and implement a Health and Safety Policy that, at a minimum, requires face coverings indoors regardless of vaccination status, except for children under age 2. The order also includes the suggested implementation of physical distance of at least three feet between students within classrooms. The order extends to all child care centers and Pre-K through 12 public schools in Dallas County.
In addition to requiring face coverings at child care centers and PreK-12 public schools, the order mandates that all commercial entities providing goods or services directly to the public in Dallas County must implement a Health and Safety Policy that requires, at a minimum, universal indoor masking for all employees and visitors. Other suggested health and safety measures include temperature checks or health screenings. The Health and Safety Policy must be posted in a location conspicuous enough to provide sufficient notice to employees and visitors of the business' safety requirements. Failure to develop and implement a policy within three days of the effective date of the order could result in a fine of up to $1,000 for each violation.
The order also directs all employees, contractors, and visitors to wear masks when entering a building or offices owned or operated by Dallas County.
For the general public, the order strongly urges all people over the age of 2 to wear a face mask when in a public indoor space. No civil or criminal penalty will be imposed on individuals who do not wear masks.
The order is effective as of 11:59 p.m. on August 11, 2021, and according to its terms will continue until rescinded by Judge Jenkins. Following the issuance of the Dallas County order, Governor Abbott and Texas Attorney General Ken Paxton announced that they had filed a petition for writ of mandamus in the Dallas Fifth Court of Appeals seeking to strike down the Dallas County order.
Houston Area
On August 10, 2021, the Commissioners Court of Harris County authorized County Attorney Christian D. Menefee to file a lawsuit challenging GA-38. In an interview with Houston Matters, Menefee announced plans to file the lawsuit on August 12, 2021, to maintain the mask mandate for county employees and to challenge the GA-38's authority to ban local government from implementing certain COVID-19 restrictions.
Currently, Harris County Public Health is working with the Centers for Disease Control and Prevention (CDC), Texas Department of State and Health Services (DSHS), and other health partners to monitor the COVID-19 pandemic and provide guidance on health and safety practices.
Houston ISD will decide whether to issue a mask mandate for public schools for the 2021-2022 school year during a school board meeting scheduled to take place on Thursday, August 12.
With infections rapidly rising, Fort Bend County was granted a temporary restraining order on August 11, 2021, and County Judge KP George announced he would reinstate a mask mandate in all public schools and county buildings. The TRO, which enjoins Governor Abbott from enforcing restrictions on county officials, is operative until Wednesday, August 25 and pending a hearing on the temporary injunction request, which is set for Thursday, August 19.
Travis County
On August 11, 2021, Travis County Judge Andy Brown and Austin Mayor Steve Adler signed orders requiring students, staff, and visitors over the age of 2 to wear face covering while on any public school property or public school buses during Stages 3, 4, and 5 under Austin Public Health's COVID-19 Risk Based Chart. Austin is currently in Stage 5 under the Risk Based Chart.
Mayor Adler and Judge Brown also signed orders on the same day requiring those over the age of 2 to wear a face covering within facilities owned or managed by the city or county. The designated county facilities do not include correctional facilities, for which rules will be promulgated by appropriate authorities including the Travis County Sheriff or Chief Juvenile Probation Officer. Courthouse complexes and courtrooms are subject to rules mandated by the Texas Supreme Court, the Office of Court Administration, and Operating Plans of the Travis County Judiciary.
The Southern Center for Child Advocacy (SCCA) in Travis County on August 9, 2021, filed a suit including requests for temporary and permanent injunctions against Governor Abbott concerning GA-38. In its first amended petition, the SCCA claimed GA-38 undermines the authority of Texas school districts to require face coverings, which is an overreach of the Governor's authority and unconstitutional since it "creates an arbitrary and capricious impediment to the ability of school districts to respond to this pandemic." The suit remains pending.
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