The same Dallas County Circuit Court Judge who blocked Republican Gov. Greg Abbott’s ban on mask mandates has upheld her previous ruling following a new hearing Tuesday on whether to continue Dallas County's mask rules.
Judge Tonya Parker's decision was revealed early Wednesday afternoon, meaning Dallas County Judge Clay Jenkins' mask order remains in place.
"We are grateful the court recognized that in a local crisis, local responders such as Judge Jenkins are in the best position to decide what is best to protect local citizens," said attorney Charla Aldous, one of the lawyers representing Jenkins in court. "What’s more, the law in Texas conveys the authority on him, and other county judges, to take steps that are necessary to protect the people from this deadly virus. That is what he is determined to do and, with this ruling, what he will continue to do."
Should Texas Attorney General Ken Paxton appeal the ruling, Aldous said that they will be ready to defend their case as needed.
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Parker issued the Aug. 10 temporary restraining order that permitted Jenkins, Dallas County’s top elected leader, to move ahead with mask requirements for indoor public places.
The actions came in a lawsuit, filed by Dallas County Commissioner J.J. Koch after Jenkins had Koch removed from an Aug. 3 meeting for refusing to wear a mask.
At Tuesday’s hearing on whether to grant an injunction in the case, lawyers from the Texas Attorney General’s office supported Koch’s position arguing that the governor's orders are superior to Dallas County.
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“The only possible reading of the Texas Disaster Act is the governor is the one ultimately in control,” Assistant Attorney General Todd Dickerson said.
The state presented no witnesses, arguing that the issue is a basic question of law.
“Does Judge Jenkins and Dallas County have the authority to impose the mask mandate,” Assistant Attorney General Benjamin Dower said. “The debate about public policy about masks is really irrelevant to that central legal question.”
The state’s lawyers did pick at evidence and testimony from Jenkins’ witnesses in the five-hour virtual hearing.
Three doctors supported the need for masks.
Dr. Edward Septimus is an infectious disease specialist with Harvard Medical School, working in Houston.
“Masks are very effective. They can be done immediately. There is essentially no cost associated with them. This is the right thing to do for all of us,” he said.
Septimus received a cross-examination from Dowers.
“None of the members of the general public have voted you into an office to make these decisions for them, correct,” Dowers asked.
“That is correct,” Septimus responded.
Attorney Warren Norred is representing Koch and said he had written statements to submit suggesting that masks can cause harm.
“And they include rashes. Real harm done by kids who are being damaged by the militant mask enforcement,” Norred said.
Jenkins's lawyers argued there is irreparable harm to the public by removing the mask mandate. Jenkins order does allow certain exceptions.
Jenkins testified that it is not a political issue.
“No motivation other than to save lives and tamp down illness,” Jenkins said.
But politics is certainly part of the equation. Abbott, J.J. Koch, and Attorney General Ken Paxton are all Republicans.
Jenkins, the other three members of the Dallas County Commissioners Court, and Parker are all Democrats, elected in a heavily Democratic county.
Parker said she was impressed by the seriousness of the matter. She asked Jenkins’ lawyers to submit their proposed injunction and her remarks also suggested she was inclined to rule in their favor once again.
“Certainly I have not heard any argument there is harm associated with wearing a mask that is greater than not being conscious of the public health side,” Parker said.
But the judge said she would also read written briefs submitted by both sides. No order was filed as of Tuesday evening.
Jenkins removed punishment for violations of the Dallas County mask mandate after Texas Supreme Court action in the case, but the state’s top court also stayed final action with several mask cases pending around Texas.
In the meantime, Jenkins could get some mask enforcement power back depending on how the judge rules.
