Texas: Mask On, Mask Off, Mask On…

Originally published August 12, 2021, updated August 16, 2021.

UPDATE: On August 15, 2021, the Texas Supreme Court issued an Order temporarily staying the Dallas County order described in the below article. In response to the Court’s order, on August 16, 2021, Dallas County Judge Clay Jenkins issued a modified Order deleting the enforcement provisions of his orders described below as of 1:00 p.m. CST on August 16, 2021.

In an apparent rebuttal to Governor Abbott’s July 29, 2021, Executive Order (GA-38), which was aimed at creating uniformity in the response to COVID-19 throughout the State of Texas and which prohibited local authorities from imposing their own mask, vaccine, or other COVID-related restrictions on businesses and schools (while simultaneously encouraging businesses and schools to continue to follow local and federal health recommendations), Dallas County Judge Clay Jenkins issued his own Order on August 11, 2021, requiring all public schools, child care centers, commercial entities that provide goods or services directly to consumers, and Dallas County buildings to require face coverings for all persons over the age of 2, regardless of vaccination status. Judge Jenkins Order asserts he has the authority to issue this Order pursuant to Texas Government Code Section 418.108, which grants him certain legislative authority in instances when a local disaster is declared.

According to Judge Jenkins’ Order, commercial entities that provide goods or services directly to consumers are also required to post the Health and Safety Policy set forth in Judge Jenkins’ Order in a location sufficient to provide notice to employees and visitors of all health and safety requirements. These commercial entities must comply within three (3) calendar days or face possible fines up to $1,000 for each violation. Judge Jenkins’ Order further states that any “peace officer or other person with lawful authority” is authorized to enforce its provisions. It does not state how or by what means they can or should enforce the provisions. On August 12, 2021, Judge Jenkins issued a revised Order clarifying that an employee in a covered business is not required to wear a face mask while alone in their office.

Regarding public schools and childcare centers, Judge Jenkins’ Order states that it allows such entities to implement other mitigating measures recommended by the CDC including maintaining a physical distance between students of at least 3 feet within classrooms. Similarly, Judge Jenkins’ Order states that it permits commercial entities that provide goods or services directly to consumers to implement other mitigating measures recommended by the CDC including temperature checks and health screenings.

Judge Jenkins’ Order further recommends that all people 2 years of age or older wear a face mask when in public indoor spaces. Echoing Governor Abbott’s Executive Order, Judge Jenkins’ Order states that no civil or criminal penalty will be imposed on individuals for failure to wear a face mask.

The stated purpose of Judge Jenkins’ Order is Judge Jenkins’ determination that “extraordinary emergency measures must be taken to try and mitigate the effects” of the COVID-19 pandemic. Jenkins’ Order further states that rates of infection are increasing “at an alarming exponential rate” and the number of individuals hospitalized, in the ICU, or on ventilators is also “dramatically rising despite efforts by local authorities to control the spread.” The most recent data on COVID-19 cases in Dallas County shows that number of COVID cases per day has increased in the last month from approximately 147 cases per day to 852 cases per day.1 Jenkins’ Order does not mention the number of COVID-19 related deaths in Dallas County, which began a steep decline in January, with a high of as many as 31 deaths per day, and has remained low and relatively unchanged since early April, with a current daily average of three COVID-19 deaths per day.2

Shortly after Judge Jenkins issued his Order, Governor Abbot issued a Press Release announcing that he and Attorney General Ken Paxton filed a mandamus petition in the Fifth Circuit Court of Appeals to strike down Judge Jenkin’s Order as it is in direct violation of Governor Abbot’s Executive Order GA-38. The Press Release asserts that the Governor’s Executive Order has the force and effect of state law and supersedes local rules and regulations. Additionally, it referred to past attempts by local authorities to override Executive Orders relating to COVID-19 and which were rejected by the Court of Appeals.

Regarding whether to follow Governor Abbott’s Executive Order or Judge Jenkins’ Order, at present Judge Jenkins’ Order stands and businesses should plan to comply within the three-day time limit (by August 14, 2021, at 11:59 p.m.). How long and whether Judge Jenkins’ Order will remain in effect is currently unknown and likely depends on when the Court of Appeals hears Governor Abbott’s mandamus petition.

See Footnotes

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.