Common Law: Mandate of the school mask – what is the current state of the law? – Columns



I am super confused. I know AISD has a mask warrant. But I also know Governor Abbott doesn’t want masks. And I know there have been a ton of battles in court in recent weeks over who should decide. But honestly, I have no idea what the current state of affairs is. Are masks still mandatory in Austin schools? Is the governor’s no-mask rule still in place?

Yes and yes. You are right, it can all be confusing. The situation is fluid, with courts at all levels in Texas having rendered conflicting decisions in the past month. Here is a brief summary of the events of August and the current situation at the end of August 2021.

Governor Abbott previously issued an executive order (Executive Order GA-36) that ended the statewide mask mandate. The ordinance expressly prohibits local governments from requiring that a person wear a mask. to wear a face cover “). The order extends to public schools, where at present “no student, teacher, parent or other staff member or visitor may be required to wear a face covering.”

Many counties, towns and independent school districts (ISDs) have either openly challenged the order or ignored it altogether, continuing with school mask mandates. Ken Paxton, the state attorney general, has released a list of more than fifty local government entities that he says are not complying with the governor’s order. The fundamental question is which government officials – the governor or locally elected officials – should have the legal capacity to decide what the government’s position should be on school mask mandates.

The counties of Dallas and Bexar took the lead in challenging the governor’s order by filing a temporary restraining order, which essentially asked local district court judges to authorize the county and independent school district (ISD ) to apply the mask warrant on a temporary basis pending future merits proceedings. District court judges ruled in favor of local governments and authorized school mask warrants as an interim litigation over the issue ensued. Austin / Travis County filed a similar lawsuit and obtained a similar ruling from a local Travis County district court.

Paxton’s office appealed some of those decisions to the Texas Supreme Court, the highest civil court in Texas, where all nine justices are Republican. After settling some procedural irregularities, the Supreme Court finally ruled against the local governments. The Supreme Court has ruled that the “status quo” of allowing the governor to ban mask warrants will continue while lower courts deal with the substantive issue.

The city of Austin and Travis County, which were not parties to the Texas Supreme Court case, continue to order the wearing of masks in public buildings and schools so that AISD continues to enforce the mandate of masks. Travis County Judge Andy Brown recently said “[u]Until we find ourselves in a dispute directly with the governor, we will maintain our requirement that public schools require masks in place. ”

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Marrs, Ellis & Hodge LLP,

The material in this column is for informational purposes only. It does not constitute or replace legal advice. For advice on your specific facts and circumstances, consult a licensed lawyer. You can contact the Lawyer Referral Service of Central Texas, a nonprofit public service of the Austin Bar Association, at 512-472-8303 or


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