Challenge to Harris County's Face-mask Mandate

This case could head to the Texas Supreme Court soon

|The Volokh Conspiracy |

Earlier this week, the Harris County Judge (the chief executive) ordered people to wear masks outside their residences, and wash their hands. Here is an excerpt of the text:

2.When outside their residences and in a public place, residents shall continue to maintain social distance of at least six feet.

3.Face coverings shall be worn except when:

a.Exercising outside or engaging in physical activity outside alone;

b.Alone in a separate single space, whether indoors or outdoors;

c.In the presence only of other members of one's residence, whether inside or outside the residence;

d.When doing so poses a greater mental or physical health risk, including exacerbating a pre-existing medical condition or including, but not limited to, anyone who has trouble breathing, or is unconscious, incapacitated or otherwise unable to remove the cover without assistance;

6.Residents shall wash their hands before leaving the residence and upon return, and shall take the following additional actions after leaving their residences:

  • Stay at least six feet away from others; and
  • Avoid touching the nose or face.

Violator would have to pay a $1,000 fine. In Texas, County Judges are executive officials. Harris County includes Houston, where I reside.

Today, a challenge was filed to the County Judge's order. The suit was filed by Steven Hotze, a prominent conservative activist in Texas. Here is the background section. The plaintiff seeks a Temporary Restraining Order. He expects a hearing to be set for Friday. An appeal to the Texas Supreme Court will certainly follow.

The Plaintiff raises claims under the state Constitution and local law. In short, the County Judge lacks authority to create new criminal offenses.

We used to argue about the government issuing mandates to buy broccoli. Now, we have mandates to wear masks and wash your hands.

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  1. “Now, we have mandates to wear masks and wash your hands.”

    They’ll fine you for touching your face.

  2. The judge is masquerading as a legislator who knows what’s best.

    1. Read:

      In Texas, County Judges are executive officials.

      1. In Texas, County Judges are executive officials.

        And this executive official is, as stated, “masquerading as a legislator.” What was your point?

        1. “And this executive official is, as stated, “masquerading as a legislator.””

          So are all the state governors, mayors and county executives everywhere else that have issued emergency stay-at-home and business closure orders.

          Other than the fact that Texas gives county execs the title of Judge, what makes this particular case special that the County Judge should be held out for criticism on this point when others are not?

          1. “So are all the state governors, mayors and county executives everywhere else that have issued emergency stay-at-home and business closure orders.”

            In most of those cases, I think you will find that the legislature previously enacted some kind of emergency powers legislation that explicitly authorizes the executive to take various actions during emergencies.

            For example, Washington’s is RCW 43.06.220.

            1. Massachusetts still has a sodomy statute on the books, along with at least *two* blasphemy statutes. That doesn’t mean they are Constitutional….

              1. Similarly, Massachusetts still has a murder statute on the books. That doesn’t mean it is Constitutional….

                Emergency powers laws are common, nigh on ubiquitous. Because having a curfew when there is looting after a hurricane, or forbidding people from open campfires in fire season, etc are eminently reasonable things to do, and when time is of the essence you can’t always convene the legislature. Now, if you want to litigate against them, and you win, fine, but ‘it might be unconstitutional’ isn’t much of an argument, especially when it almost certainly is constitutional.

                One can quibble about the details – see e.g. the gun store and abortion Covid debates of recent weeks – but just objecting to emergency powers laws in general strikes me as an argument that is not going to find much traction.

                1. Actually, murder is a common-law offense in Massachusetts: there is no statute.

                  1. Well, I sit corrected!

                    (and thanks, I always appreciate my B.S. being corrected – I really do!)

          2. So are all the state governors, mayors and county executives everywhere else that have issued emergency stay-at-home and business closure orders.

            Other than the fact that Texas gives county execs the title of Judge, what makes this particular case special that the County Judge should be held out for criticism on this point when others are not?

            Well, we could start with the fact that we aren’t talking about an emergency stay-at-home or business closure order by a mayor or governor, and go from there.

            As Absaroka already pointed out, there’s the rather inconvenient threshold question of statutory authority for the actions of the executive officer, and from a review of the statute cited as alleged justification in this particular order, that authority simply doesn’t exist in this situation.

      2. Without addressing the specifics of this subthread, I’ll just offer the clarification that the County Judge is the equivalent of a County Mayor, and is the official responsible for coordinating disaster responses such as Hurricanes.

        So, this is the local official who would be responsible for issuing such an order, if such an order were legal.

        She is also new to the role. This is her first crisis. Good times.

  3. What about the mandates to wear clothes, obey stop signs and center lines, and refrain from driving after a few beers?

    What part of the Constitution entitles the government to compel me to purchase or wear any clothing as I assemble with others or express myself? Why must I stop at a deserted intersection just to appease the know-it-alls in government? Unless and until I hurt someone, why it is anyone’s business whether I am intoxicated while driving?

    Carry on, clingers.

    1. Because, you fascist, she did it by fiat, not through any legislative process.

      Just like you would, given the chance.

    2. “What about the mandates to wear clothes,”

      Or in the case of some of our Democratic Socialist betters, the mandates to wear fewer clothes.

    3. What part of the Constitution entitles the government to compel me to purchase or wear any clothing as I assemble with others or express myself?

      Finally, someone said it!

      Oh, wait. That wasn’t your point.

  4. Steven Hotze, a prominent conservative activist in Texas

    Hotze is not a “prominent conservative activist”. He’s a quack who sells snake oil remediates which the FDA had to tell him to stop doing. He also one of those charming individuals that equates pedophiles with being gay. This is a publicity stunt.

    In other words – he would be right at home in the comment section of Reason.

    1. Who’s a quack in this era of injectable Clorox and internal light therapy?

      1. Are we supposed to inject it or swallow it? I hear they’re coming out with lemon, raspberry, and orange flavored Clorox.

        1. It will likely be administered primarily via suppository.
          CAVEAT: The above statement is an attempt at humor. It isn’t true.

    2. I’m sorry, I was in the Boy Scouts when NAMBLA was running amuck, and while not all gays are pedophiles, the NAMBLA ones really are….

      REALLY ARE….

      1. Well, if you’re in NAMBLA, pretty much by definition…. But as America has more or less 8 million gay men and NAMBLA members number around a thousand, I’m not sure what your point is.

        1. The rest are Catholic priests?

          1. The nazis were all gay

            Read “the Pink Swastika”

    3. pedophiles with being gay

      Most pedophiles are gay. The exception being the minority that prey on the opposite sex.

      Gay culture also has a problem with older men preying on young boys, often pre-pubescent.

  5. Can this lawsuit really succeed? The rights based claim of “freedom to abstain from wearing a mask” seems a bit like the “freedom to drive without a driver’s license”. The part about the judge contradicting the governor by ordering *additional* measures also seems wrong.

    I don’t know about the claims about the judge exceeding his executive authority though.

    Maybe it’s an excessive fine? But he doesn’t claim that.

    It seems unlikely me (a non-lawyer) that is going to succeed.

    1. Yeah, the only possible non-frivolous claim here is exceeding the powers of the office under state law.

      Any claim of a constitutional right to be maskless in a pandemic is bats.

    2. How can the state mandate you wear something that most people don’t have? Its not like Texans are swimming in surgical facemasks. Our mayor was contemplating this sort of order, and instead made it a suggestion because its obvious that most people don’t have access to a mask, and the only way to reasonably impose such an order would be if she shipped boxes of masks to every household.

      1. This. My own state “requires” masks. I have no idea where to get one, and pharmacies don’t have any.

        1. You can make a disposable mask in 5 mins with paper towels or napkins, a few staples, and 2 rubber bands. Check YouTube.

          1. Such masks primarily reduce outbound infection likelihood. They provide only minimal protection against inbound infection (infection of the wearer).

            1. Which is the main utility of public mask use, if I recall the CDC’s updated guidance correctly.

              I’m using a bandana.

      2. Maybe time for a little self reliance? Here are some simple instructions.

        (heh … bonus points to the commenter there who reposted the S.G.’s prior ‘they are not effective …’ line)

      3. The order appears to say “face covering.” There are lots of ways to manage that short of a surgical facemask. The internet has all sorts of ways to create a no-sew mask, and you can use a scarf, a bandana, etc.

      4. In Hidalgo County (also in Texas), the county judge’s order is that one must wear a face covering, but not a medical grade mask unless one is a medical professional.

      5. Any cloth, bandana, etc, meets the requirement. You could literally pull your tshirt up over your nose.

  6. Harris County Democratic Judge Lina Hidalgo: I Decree That All Subjects Wear Masks. HPD Union: GET STUFFED!

    https://www.battleswarmblog.com/?p=44257

    1. “Our officers work every single day to bridge the gap with our community and earn their trust, we will not stand idly by and allow Hidalgo to tear that bridge down, with her horrific leadership and echo chamber decision making.”

      1. To be clear, that’s the same HPOU, led by the same person, that issued violent threats against those protesting the murder of Dennis Tuttle and Rhogena Nicholas by the HPD last year.

        1. Some rights are more equal than others.

  7. Requiring everyone to wear a mask?

    Just use some Chief Justice Roberts logic and call it a tax.

    1. In Texas, County Judges are executive officials.

  8. Is this judge accountable to the executive branch or the Judicial branch? Can the governor overturn the decision?

    1. “Is this judge accountable to the executive branch or the Judicial branch? ”

      Neither. The judge is accountable to the voters.

      This is a case of odd terminology. In Texas, the county commission is considered a court and the presiding county executive carries the title of judge.

      The “judge” in this case is the head of the executive branch of the county government.

  9. This order seems entirely consistent with the analysis in Abbot I and II which you thought sound. What exactly is the difference?

  10. We used to argue about the government issuing mandates to buy broccoli. Now, we have mandates to wear masks and wash your hands.

    We used to have arguments about what the federal government, which quite notably lacks a general police power, could compel. I have no idea why those arguments are relevant to what a state can compel.

    1. (Whether the County executive has the power to issue such orders himself is a separate question from whether such an order is permissible in general.)

    2. The implicit analogy of mask-wearing to broccoli-eating is inapt to say the least. Not eating broccoli can’t potentially kill or permanently injure others.

  11. The simple question under state law is whether the county executive has authority to issue emergency regulations or if a different procedure is needed to enact them.

    If he has the authority, I expect the individual rights challenges will fail.

    1. Check out Texas Govt Code 418.173.

      County judges have the authority to control “ingress and egress” from disaster areas, to define the limits of those areas, and to institute penalties not to exceed 180 days or $1000.

      A mask might be a little stretch, but could be justified as regulating the manner of ingress.

      Google up the Bexar County judge’s order, which takes care to lay out the line of authority carefully.

      1. Yeah. This can be seen as a requirement for ingress/egress of a disaster area.

      2. A mask might be a little stretch

        For sufficiently massive values of “little,” I completely agree.

        but could be justified as regulating the manner of ingress.

        Only if the word “ingress” ceases to have any recognizable meaning. She’s declared the “disaster area” to be the entire county. So by definition, occupants of the county who never leave its boundaries cannot “ingress” into the “disaster area.”

        Google up the Bexar County judge’s order, which takes care to lay out the line of authority carefully.

        You mean this order? There’s not a word in it about statutory authority for ordering mask usage. You may be thinking about the original stay-at-home order, which involves a completely different set of issues.

        1. You mean this order? There’s not a word in it about statutory authority for ordering mask usage. You may be thinking about the original stay-at-home order, which involves a completely different set of issues.

          Well, since he said the Bexar County judge, and that isn’t signed by the Bexar County judge, I can’t imagine why you thought he meant that order.

          He presumably meant this order.

          Oh, and the relevant statute does not merely say control the ingress and egress; it says, “control ingress to and egress from a disaster area under the jurisdiction and authority of the county judge or mayor and control the movement of persons and the occupancy of premises in that area.” Telling people that they have to wear masks if they move in public is certainly a form of controlling their movement.

  12. No comment on the legal authority of the official to issue this order, but from a substantive-rights perspective this is completely fine. Extremely minimal burden on people’s freedom, no fundamental rights involved, lets people move about and exercise other rights without significant interference. Run it.

    1. Let’s see — a sexual act known to spread AIDS in the midst of an epidemic is a Constitutional right, but not doing something that has (at best) a 1% chance of being effective is not?

      Oh Brave New World.

      Hint: Does “Less than 1% chance of being effective” meet the rational test?

      1. It’s almost as though sex has some different equities associated with it than getting a hair cut.

      2. It’s your contention that masks are less than 1% effective at reducing coronavirus transmission? Could you link to the research you’re relying on for that proposition?

  13. This Hotze sounds like your kind of guy, professor.

  14. “When doing so poses a greater mental or physical health risk ”

    What’s a mental risk in this context? Someone who self-identifies as maskless and would have a hissy if wearing a mask?

  15. The election of a complete political novice, Ms. Lina Hidalgo, to the most powerful office in Harris County(Houston) is the direct result of a now thankfully discontinued Straight Party Ticket Vote format. Almost daily city/county residents are suffering from the totally chaotic decrees and proclamations that roll out from the county judge and her firmly entrenched handlers. Hopefully the Texas Supreme Court will overrule this latest blatant case of bureaucratic overreach and keep the judge on the path to being a one-term elected official!

  16. I doubt anyone is still following the comments on this post, but out of curiosity I looked up the case’s current posture online.

    It has NOT gone to the Texas Supreme Court — a ridiculous prediction by the plaintiff’s lawyer that I was disappointed to see Prof. Blackman repeat in this post, since there’s an intermediate appellate court that would have to be heard from first and the Texas Supreme Court’s jurisdiction is generally discretionary.

    Rather, the initial TRO request was flatly denied by written order signed by Judge Steven Kirkland (sitting as the “Ancillary Judge” who heard emergency motions in the Harris County Civil District Courts that week) on April 24. TRO denials are ordinarily NOT appealable under Texas civil procedure (unless they have the practical effect of resolving a controversy in the same way a longer-lasting, evidence-based temporary injunction might). Regardless, no attempt has been made to seek an appeal. Indeed, except for the denial of the TRO (which was entirely predictable), nothing else of any consequence appears to have happened, at least from what’s available online.

    The case’s filing got publicity for the plaintiff and his lawyer, the former head of the Harris County GOP (who normally practices family law). That, I submit, was its purpose all along.

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