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Update 3:50 p.m. Oct. 1: This story has been updated with information from area schools
El Paso’s mandate requiring masks in indoor spaces, including schools, was ended on Thursday by the 8th Court of Appeals. The ruling does not apply to the El Paso Independent School District, which is involved in a separate court case.
The appeals court said the city’s mask mandate had to be lifted while it hears an appeal by the Texas Attorney General’s Office of a lower court ruling upholding the mandate. The ruling was based on Texas Supreme Court orders on similar mask mandates in San Antonio and Bexar County, the city said in a news release.
The mask mandate by Dr. Hector Ocaranza, the El Paso health authority, has been in effect since Aug. 17. The city’s rate of newly reported COVID-19 cases has declined in that time.
Gov. Greg Abbott has issued an executive order barring local governments, including school districts, from requiring masks to prevent the spread of COVID-19.
Despite Thursday’s ruling, the county’s largest district can continue to require students, teachers and staff to wear masks because it is part of a multiple school district lawsuit challenging Abbott’s executive order.
The El Paso ISD Board of Trustees voted on Aug. 17 to join a suit join a suit La Joya ISD and five other districts filed against Abbott days earlier in Travis County. The lawsuit now includes nearly two dozen districts, including a community college. EPISD was the only El Paso area district to join.
A Travis County judge granted the parties a temporary injunction against Abbott, allowing the districts to continue requiring masks. The governor is contesting that ruling with the 8th Court of Appeals. State and the districts’ attorneys are still submitting briefs before the court makes a final ruling in the case.
The EPISD Board of Trustees will hold a special meeting Monday to discuss the La Joya ISD lawsuit, and possibly take action, according to the agenda.
The Centers for Disease Control and Prevention recommends that people vaccinated against COVID-19 wear masks indoors when they are in communities where the number of new cases in the past seven days is more than 50 per 100,000 residents.
El Paso has been above that threshold since late July, although it is among only 7% of counties nationwide to have COVID-19 infection rates below 100 per 100,000 residents.
Ocaranza called on El Pasoans to continue steps to mitigate the impacts of COVID-19.
“We continue reporting new COVID-19 cases, hospitalizations and deaths, which signifies that this pandemic is clearly not over,” he said in a statement issued by the city. “El Paso is indeed a strong and resilient community that values the health and wellness of our family, friends and neighbors, which is why we urge everyone to get fully vaccinated, wash your hands, watch your distance and continue wearing your face mask when you are indoors or in crowded spaces.”
Spokespersons for the Socorro and Anthony independent school districts said though they can no longer enforce mask wearing, they highly encourage their campus communities to follow Ocaranza’s recommendations when it comes to mask use.
Ruben Morales, the judge of El Paso County Court-at-Law No. 7, issued a temporary injunction on Sept. 2 allowing the city’s mask mandate to continue. But the El Paso appellate court denied the city’s request to keep that injunction in effect while courts decided the legality of Abbott’s executive order prohibiting mandates.
“In short, where courts are asked to determine which government officials have the legal authority to decide whether a mask mandate applies within a local jurisdiction, the Supreme Court has determined the status quo is ‘gubernatorial oversight of such decisions at both the state and local levels,’” the 8th Court of Appeals ruled on a 2-1 vote.
Justices Gina Palafox, a Democrat first elected in 2016, and Jeff Alley, a Republican appointed by Abbott, voted in favor of an order ending the mask mandate. Chief Justice Yvonne Rodriguez, a Democrat elected last year, dissented.
The 8th Court of Appeals still must decide whether the governor’s executive order can preempt local health mandates, so it’s possible the mandate could be reinstated at a later date. But the nine Republican justices of the Texas Supreme Court will ultimately decide the issue and in preliminary rulings have consistently sided with Abbott, also a Republican.