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Appeals court blocks El Paso mask mandate except for schools, city buildings

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A divided Texas 8th Court of Appeals struck down much of El Paso’s indoor mask mandate Friday, but left it intact for schools and city buildings.

Public school students, teachers and staff will continue to be required to wear face coverings indoors.

City employees and visitors to city-owned buildings and facilities must also continue to adhere to the mask requirements city-county health authority Dr. Hector Ocaranza set forth Aug. 18.

Friday’s appeals court ruling came after Gov. Greg Abbott challenged a temporary restraining order County Court-at-Law No. 7 Judge Ruben Morales issued that gave El Paso officials the greenlight to challenge the governor’s executive order prohibiting local mask mandates.

El Paso Mayor Oscar Leeser did not return a request for comment, nor did officials with Abbott and Texas Attorney General Ken Paxton’s offices.

Ocaranza, in a prepared statement, urged residents to get vaccinated. “​​Vaccination continues to be a critical and integral part of our pandemic response, along with other public health measures such as wearing masks when indoors,” the statement read.

Previously, Ocaranza had ordered masks be worn by anyone age 2 and older in any indoor setting to curb the spread of new coronavirus cases being fueled by the highly-contagious delta variant.

The U.S. Centers for Disease Control and Prevention recommends people wear masks, regardless of vaccination status, in communities with substantial or high spread of COVID-19.

El Paso is considered to have high community transmission because it has had a seven-day average of more than 50 new COVID-19 cases per 100,000 residents since July 28. El Paso has recorded twice that level since Aug. 17.

The three 8th Court of Appeals justices, who are based in El Paso, were split on how to rule on the governor’s attempt to block the TRO. Justice Yvonne Rodriguez voted to leave the full TRO in place, while Justice Gina Palafox voted to limit its scope. Both are Democrats who were elected by voters. Justice Jeff Alley, a Republican appointed by Abbott to fill a court vacancy, voted to block the TRO.

Because the court was split three ways, Palafox’s middle ground was adopted as the court’s ruling. Her ruling didn’t explain why she treated schools and city buildings differently from other areas covered by the mask mandate.

The continuing mask requirements for El Paso schools and city facilities are likely to be short-lived.

Paxton is expected to challenge the 8th Court of Appeals ruling with the Texas Supreme Court, as he did for similar mask mandates issued by Bexar County officials.

On Thursday, the state’s high court temporarily struck down San Antonio and Bexar County’s mask requirement for schools and government buildings while the issue is litigated in court.

Morales will determine in an Aug. 31 hearing whether to extend the TRO he granted. The hearing will only apply to the part of Ocaranza’s mask mandate the appeals court allowed to stand, according to city spokesperson Laura-Cruz Acosta.

Cover photo: The CDC recommends that El Pasoans wear masks indoors to reduce the spread of COVID-19. (Claudia Tristán/El Paso Matters)

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Molly Smith

Molly Smith has been a reporter for the El Paso Times and The (McAllen) Monitor. She’s covered education, criminal justice and local government. A Seattle native, she’s lived in Texas since 2014, with stops in Austin, the Rio Grande Valley and now El Paso. She can be reached at mksmith@elpasomatters.org or 915-247-8857.

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