The fight over the right to issue a mask mandate in Dallas County has been submitted to the 5th Court of Appeals in Dallas.
Governor Greg Abbott is asking the court to overturn a temporary restraining order that blocks his executive order that blocks locally issued mask mandates. Dallas County Judge Clay Jenkins issued his order, declaring a public health emergency because of the rapid spread of the Delta variant of the coronavirus.
A lawyer for the Governor argues the question is a matter of law, with Abbott asserting he has the right to issue the executive order as commander-in-chief. The Governor further claims his order outranks a county judge.
“First, Judge Jenkins’ local orders are preempted by GA 38 (the executive order). Second, the source of statutory authority by which Judge Jenkins relies to issue his face-covering mandate have been validly suspended by the Governor and third, Judge Jenkins can act to address a statewide disaster only as the Governor’s agent,” argued William Cole, attorney for Abbott.
But that authority is not as cut and dried, according to a lawyer for Jenkins.
“Effectively, what the Governor is seeking to do here is to make himself commander in chief beyond the sphere that was provided by the legislature by saying ‘I will now be commander in chief of all local governments by simply suspending the statute that the legislature enacted giving that group power,’” said Douglas W. Alexander.
Alexander also chided the Governor for giving “vacuous policy announcements” of issuing the executive order to protect the economy.
The three-justice panel peppered Cole with questions about the application of the law and wondered why the lawyer for Abbott did not call any witnesses during the initial TRO hearing in August.
A sleeper argument over the status of a County Judge in Texas seemed to catch Cole off guard.
Under an order by the Supreme Court of Texas, the judiciary is excluded from GA 38.
“The County judge is in the judicial branch, right?” questioned Justice Bill Pedersen, III.
“He would be an executive officer,” Cole responded.
“No, he’s not. No, he’s not. In the Texas Constitution, the County Judge is in the judicial branch. And if we separate branches then the County Judge is not part of the executive branch,” Pedersen said.
In closing his arguments, Cole drove home his point that the case is not about whether people should wear masks or whether the government should make them do it, rather it’s about who has the authority.
Presiding justice Erin A. Nowell noted the case has been filed on an expedited bases and promised an opinion “as quick as possible.” The case is expected to eventually be sent to the Supreme Court no matter which way the panel rules.
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