Abbott, Paxton file appeal on mask mandate defiance

By Bethany Blankley | The Center Square

Texas Gov. Greg Abbott and Attorney General Ken Paxton are embroiled in a legal battle with Dallas County Judge Clay Jenkins after he attempted to have the governor’s mask order blocked statewide.

Abbott recently signed Executive Order GA-38, which forbids local government entities from requiring individuals to wear face coverings. Jenkins then filed a counterclaim suit against Abbott seeking to prohibit the governor from enforcing the executive order.

Jenkins was also sued by a county commissioner and given until Monday to comply with the order by the attorney general. 

A trial court issued a temporary restraining order enjoining the governor from enforcing the order statewide, prompting the governor and the attorney general to file an appeal with the Court of Appeals for the Fifth Judicial District in Dallas.

Gov. Abbott argues the order has the force and effect of state law and supersedes local rules and regulations, citing the Texas Disaster Act of 1975.

The 46-year-old law, the governor argues, allows him to issue executive orders in times of emergencies. Abbott was sued multiple times last year after he used the law to issue a shutdown order, which led to some businesses shuttering.

Lawsuits over previous mask mandates the governor issued last year are making their way through the courts, including several filed by parents against school districts.

“At the beginning of the pandemic when Dr. Fauci and [Abbott’s] mask mandates were the popular thing to do, Abbott jumped onboard, ordering, among other things, a mask mandate for all Texans,” Houston attorney Jared Woodfill, who sued the governor on behalf of thousands of Texans, told The Center Square. “When the political winds change and Florida Governor Ron DeSantis begins to lead, and Abbott is suddenly faced with three primary challengers who are standing for liberty, Abbott suddenly does a 180 and finds the conviction to respect our individual liberties and ban mask mandates.” 

Abbott’s latest executive order prohibits all school districts, public universities and local government officials from implementing mask requirements. Those who don’t follow it, the order states, are to be fined at least $1,000 per violation and taken to court.

“Under Executive Order GA-38, no governmental entity can require or mandate the wearing of masks,” the governor said in a statement. “The path forward relies on personal responsibility—not government mandates. The State of Texas will continue to vigorously fight the temporary restraining order to protect the rights and freedoms of all Texans.”

Referring to Judge Jenkins having County Commissioner JJ Koch escorted from a meeting for not wearing a mask and not complying with his warning, Attorney General Ken Paxton said, “This isn’t the first time we have dealt with activist characters. It’s deja vu all over again. Attention-grabbing judges and mayors have defied executive orders before when the pandemic first started, and the courts ruled on our side – the law. I’m confident the outcomes to any suits will side with liberty and individual choice, not mandates and government overreach.”

Dallas area attorney Warren Norred, who is suing Jenkins on behalf of Koch, says the suit seeks to remove Jenkins from office because “he is issuing illegal orders and misusing the power of his position to prevent fellow commissioners from participating when he knows that his rules are illegal.”

Norred has also sued Abbott over an executive order the governor issued restricting nursing home access.

The Williamson County District Court’s office, Houston Mayor Sylvester Turner, and Austin Mayor Steve Adler also issued their own mandates in defiance of Abbott’s order. Unlike Jenkins, they have yet to be sued or taken to court.

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