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Waco schools' lawyer argues mask mandate suit should join others filed by AG

Waco schools' lawyer argues mask mandate suit should join others filed by AG


An attorney representing Waco-area school districts in lawsuits over school mask mandates filed by Texas Attorney General Ken Paxton asked a judge Tuesday to abate the local suits and add them to cases already pending in a Travis County intermediate appellate court.

Judge Vicki Menard of Waco’ 414th State District Court heard arguments from attorneys for the Attorney General’s Office and Waco and La Vega school districts in a continuation of a hearing she started Sept. 27. Paxton’s office is seeking temporary injunctions to force Waco and La Vega independent school district officials to discontinue their mask mandates and to abide by Gov. Greg Abbott’s order banning mask mandates by state entities.

Abbott doubled down on his controversial COVID-19 orders Monday by issuing an executive order barring any entity, including private companies, from requiring COVID-19 vaccines.

Menard did not make a ruling after Tuesday’s three-hour hearing and has not ruled on the AG’s request for temporary injunctions against the school districts. Midway and McGregor schools also were included as defendants in the original lawsuit, but the AG agreed to dismiss them after Midway argued it had no such mandate in place and McGregor argued its mandate was not enforced.

Waco ISD Superintendent Susan Kincannon has said the district decided to issue the mask mandate after the deaths of local educators and an alarming increase in COVID-19 cases at the beginning of the school year. Since the mandate was instituted, COVID-19 cases have dipped dramatically, officials have said.

Dallas attorney Carlos Lopez, a former state district judge, argued in his motion to abate the cases that 95% of courts that have heard similar motions have ruled against the attorney general’s office, and appeals of those rulings already are pending in the 3rd Court of Appeals in Austin. He suggested that for the sake of judicial economy and to prevent a confusing patchwork of rulings on the same issue that Menard abate the two cases in Waco and add them to the dozen or so cases pending in Austin.

Lopez said the state’s continued insistence on pressing Menard to issue the temporary injunction amounts to “forum shopping,” a tactic used by attorneys to try to find a court possibly favorable to their position.

“We are here because other courts ruled against them and they want another bite at the apple,” Lopez said. “They are saying, ‘We want a do-over.’ If you abate the cases, then they can all go up in a nice, consistent package because we all know this matter is ultimately going to be settled by the Texas Supreme Court anyway.”

Assistant Attorney General Will Wassdorf said McLennan County is the proper venue for the lawsuit because Waco and La Vega schools are violating the mask mandate ban and they are in McLennan County.

“The venue to sue Waco and La Vega is not proper in Travis County,” Wassdorf said. “If we allow the Travis County cases to continue and sit on our laurels until it is over, we will be right back here to establish that Waco and La Vega violated the mask mandate.”

Lopez countered that Wassdorf was “looking for a difference without a distinction.”

“The question literally is whether (Abbott’s executive order) is valid,” Lopez said. “If it weren’t for the disaster declaration by the governor, nobody would be claiming the school districts have been violating mask mandates.”

Lopez also challenged Paxton’s authority to bring the lawsuits, arguing the Texas Constitution gives the attorney general authority to represent the state before the Supreme Court of Texas and “to perform such other duties as may be required by law.” The constitution, Lopez argued, says that county and district attorneys “shall” represent the state in all cases on the state district court and lower levels in their respective counties.

Wassdorf told Menard that the attorney general is the state’s chief legal officer with broad discretionary power to represent the state.

“Whether based on the implied powers of the Attorney General as Chief Legal Officer of Texas originating in the common law of England or on judicial gloss through the acquiescence of over a century of courts, one thing is clear: the Attorney General can and must be allowed to represent the State of Texas and preserve the rule of law,” Wassdorf wrote in his response to Lopez’s challenge.

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