A political sparring match continues in the courts following Gov. Greg Abbott’s GA-38, the executive order that bans state entities from implementing mask requirements. Several weeks ago, Judge Lee Yeakel, a Bush appointee of the Western District Court of Texas, struck down Abbott’s order.

The judge sided with parents who claimed the order violated the Americans with Disabilities Act by putting disabled students at a higher risk of contracting COVID. However, following an appeal filed by Attorney General Ken Paxton to the 5th Circuit Court of Appeals, a panel of three judges upheld Abbott’s executive order, calling the lower court’s ruling “erroneous.” 

Paxton expressed support for the ruling on Twitter, calling the governor’s order “the law.” But despite numerous Texas lawmakers calling for a special legislative session to address mask and vaccine mandates, Abbott has deferred to his executive orders, which carry less weight than actual law.

The court explained that the injunction against Abbott’s order was far too broad. “The district court’s statewide injunction is overbroad and should, if not set aside entirely, be more narrowly tailored to provide plaintiffs relief in this case,” they wrote.

Additionally, the court challenged the legal argument presented by Disability Rights Texas, which claimed that Abbott’s executive order forced disabled students to choose between in-person school or contracting COVID. “While plaintiffs disclaim that their alleged injury is ‘the increased risk of contracting [COVID-19] absent a mask mandate,’ as the Attorney General asserts in his motion, at essence, their claims—and the district court’s injunctive relief—wholly rest on exactly that theory,” the court wrote.

Even with Abbott’s order, dozens of school districts across Texas have ignored him outright. As a result, Paxton has been forced to spend resources litigating those districts that force their students and faculty to wear masks. 

Dallas ISD has filed a separate lawsuit challenging the order and says it will continue to mandate masks.

Legislation that would have banned mask mandates failed to pass during the regular session, and was never placed on the agenda for the special sessions earlier this year. 

The court’s opinion on the case can be found here.

Griffin White

After graduating high school with an associates degree in fine arts, Griffin chose to seek experience in his field of interest rather than attend university. He describes himself as a patriotic Fort Worth native with a passion for cars and guitars. He is now a fellow for Texas Scorecard.