On Wednesday, State Rep. Harold Dutton Jr. (D–Houston), chairman of the House Public Education Committee, filed a bill that would allow a school board or the governing body of an open-enrollment charter school to determine whether to require masks or face coverings in schools for children 12 years old or younger.

Texas Scorecard reached out to Rep. Dutton’s office to receive a comment, but we have not heard back as of this publication.

This comes as local government jurisdictions across the state have begun issuing their own mandates, despite an executive order provided by Gov. Greg Abbott in July purporting to preclude such behavior.

When Abbott announced the ongoing special session agenda on August 5, he included a request that the Texas Legislature consider “legislation providing strategies for public-school education in prekindergarten through twelfth grade during the COVID-19 pandemic, which ensures: the wearing of face coverings is not mandatory,” among other strategies.

Similarly, former House speaker pro tempore State Rep. Joe Moody (D–El Paso) filed a bill that would prohibit the governor from issuing an executive order or proclamation that prohibits both public and higher education institutions from mandating masks during a disaster.

In contrast, Republican colleagues of Dutton’s have filed bills seeking to prohibit such mandates. On Monday, State Rep. Jeff Cason (R–Bedford) filed a bill specific to public schools, and State Rep. Matt Schaefer (R–Tyler) filed a bill to prohibit the governor or any local official from mandating face coverings, instead leaving it up to the Legislature to provide for such a requirement in statute.

Thus far, none of the bills have been referred to House committees, as the House is currently paralyzed and unable to conduct legislative business due to a lack of quorum.

The Legislature Chose Not to Address This Issue in the Regular Session

Schaefer filed the same bill in the regular 87th Legislative Session, but it was never afforded a public hearing in the House State Affairs Committee.

Similarly, State Rep. Cody Vasut (R–Angleton) offered an amendment to House Bill 3 (or the Texas Pandemic Response Act, as it was known while being considered in the House) that would have prohibited such mask mandates. It initially was adopted onto the bill but was shortly reconsidered, where it ultimately failed by a vote of 71 in favor to 72 in opposition. Seven Republican lawmakers voted against the amendment. Those lawmakers included State Reps. Steve Allison (San Antonio), Travis Clardy (Nacogdoches), Drew Darby (San Angelo), Charlie Geren (Ft. Worth), Kyle Kacal (College Station), Lyle Larson (San Antonio), and Four Price (Amarillo).

The Senate did not consider a bill to address the issue.

By not addressing it in the legislative session, the Legislature continued to give deference to Abbott to issue mandates via executive order, even though in the lead-up to the legislative session, several lawmakers expressed concern that they were not able to address such an issue as representatives of the people of Texas.

Response by Governor Abbott to Local Jurisdictions

Thus far, the only response from Abbott, with regard to an ever-increasing list of local jurisdictions going against his own executive order, came on Wednesday. In conjunction with Texas Attorney General Ken Paxton (R), he filed a mandamus petition in the 5th Court of Appeals to strike down actions taken by Dallas County Judge Clay Jenkins (R).

“Under Executive Order GA-38, no governmental entity can require or mandate the wearing of masks,” said Governor Abbott. “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.”

“This isn’t the first time we have dealt with activist characters. It’s deja vu all over again,” Attorney General Paxton said. “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.”

Last year, it was Abbott who mandated face coverings in the midst of the COVID-19 pandemic. It was not until March 2021 that he issued a new executive order overturning it.

Jeramy Kitchen

Jeramy Kitchen serves as the Capitol Correspondent for Texas Scorecard as well as host of 'This Week in Texas', a show previewing the week ahead in Texas politics. After managing campaigns for conservative legislators across the state, serving as Chief of Staff for multiple conservative state legislators, and serving as Legislative Director for the largest public policy think tank in Texas, Jeramy moved outside of the Austin bubble to focus on bringing transparency to the legislative process.

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