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Texas v. Pandemic: How The Lone Star State Litigated COVID

By Katie Buehler · May 13, 2022, 4:48 PM EDT ·

Texas established itself as a consistent adversary of the federal government's control over public health protocols during the COVID-19 pandemic and flexed its muscles on the homefront by actively fighting local government measures it said were overreaches.

The United States in mid-May marked the somber milestone of more than a million people dying from COVID-19, just over two years since the pandemic took hold and uprooted life and business across the globe. Of those, more than 88,000 were Texans. Texas is behind only California in total COVID-19 deaths by state, according to data published by The New York Times.

Texas, led by its top lawyer, state Attorney General Ken Paxton, sued the Biden administration six times in as many months to challenge federal requirements that passengers wear masks on airplanes and mandates that private sector employees, federal contractors, health care workers and National Guard members be vaccinated against COVID-19, arguing those measures are outside the federal government's authority.

Paxton hasn't directly challenged President Joe Biden's requirement for federal employees to be vaccinated against the virus, conceding he doesn't have standing to bring suit on that issue. But he has expressed support for the group Feds for Medical Freedom, which in early April saw its nationwide ban on the requirement wiped out by the Fifth Circuit.

And in state court, Texas asserted its authority to control the state's response to the pandemic by aggressively going after cities, counties and school districts that attempted to implement mask and vaccine mandates in their jurisdictions.

Paxton's challenges are based on the argument that individuals should be allowed to make their own health decisions. He criticizes Biden's mandates as "radical" policies that constitute federal government overreach. And he has promised to prosecute state and local officials who attempt to tread on Texans' individual rights. 

His office created a website with a running list of cities, counties and school districts that violated a statewide executive order prohibiting local face-covering requirements and called on residents to help report offending authorities. That list generated legal battles with at least 13 entities who refused to comply with the mask mandate ban, according to the website.

Along the way, both Paxton and Gov. Greg Abbott used the litigation to score political points in an election cycle where each faced serious primary challengers.

"He wants to appear as conservative as possible," Randall Erben, an adjunct professor at The University of Texas School of Law, said of Paxton. "He must think his base supports these lawsuits and these actions against authorities."

Paxton, the state's two-term attorney general, was forced into a primary election runoff in March against Texas Land Commissioner George P. Bush. Voters will determine the Republican nominee in late May.

Erben noted the vaccine and mask mandate disputes are a continuation of Paxton "being very consistent in opposing the Biden administration on you-name-it," referring to Texas' numerous lawsuits challenging immigration policies and stances on social issues such as gender identity.

Yet the state's legal fights aren't likely to have a lasting effect, said Brendan Maher, the director of Texas A&M University School of Law's health law, policy and management program.

Maher noted that in every lawsuit, Texas is challenging a specific agency's authority under a certain statute to issue the mandates, which will limit the impact of the state's wins in the courtroom to mandate-specific issues. Any U.S. Supreme Court rulings secured in these cases could provide an insight into how the court will rule on future issues, he said.

"I think these rulings are more an indicator of the Supreme Court's intentions and inclinations, rather than a direct proof that something in the future is going to happen one way or another," Maher said.

Here, Law360 breaks down Texas' cases against the federal government and local officials.

OSHA's Vaccinate-or-Test Rule

Texas was one of 27 states, led by Ohio, that challenged the Occupational Safety and Health Administration's emergency rule requiring businesses with more than 100 workers to either adopt a COVID-19 vaccination mandate or have employees submit to weekly tests.

The states, along with religious groups and private businesses, argued OSHA had no authority to enforce such a rule and that it violated the First Amendment and religious freedom.

The U.S. Supreme Court in January agreed with the challengers and prohibited the enforcement of OSHA's vaccinate-or-test rule, finding the order exceeded OSHA's authority because the virus was not a type of workplace safety hazard the administration is tasked with regulating.

The case is Ohio et al. v. Department of Labor et al., case number 21A247, in the Supreme Court for the United States.

Health Care Worker Vaccine Mandate

Texas and its state health commission filed suit against the Biden administration in November, challenging the Centers for Medicare & Medicaid Services' rule issued earlier that month requiring that employees, volunteers and contractors at certain types of health care facilities be vaccinated against COVID-19.

A Northern District of Texas judge in December granted the state's preliminary injunction bid, making Texas the 25th state at the time to temporarily halt the rule. The Biden administration appealed the injunction to the Fifth Circuit, but the case was soon dismissed following the U.S. Supreme Court's January decision upholding the rule in challenges led by Missouri and Louisiana.

The Texas case is State of Texas et al. v. Becerra et al., case number 2:21-cv-00229, in the U.S. District Court for the Northern District of Texas.

Federal Contractor Vaccine Mandate

In October, Texas filed suit challenging Biden's mandate that employees of federal contractors be vaccinated against COVID-19. The state called the rule an "overreach" and argued it was an arbitrary and capricious mandate.

The case has been stayed since December, but an initial conference has been scheduled for mid-July, according to court records.

The case is State of Texas v. Biden et al., case number 3:21-cv-00309, in the U.S. District Court for the Southern District of Texas.

Head Start Program Mandates

Texas launched a challenge in December to the Biden administration's interim rule requiring staff, volunteers and contractors for Head Start programs to be vaccinated against COVID-19. The rule also requires students enrolled in the programs to wear masks if they are older than 2.

The state argued the mandate was illogical and failed to follow the statutorily mandated notice-and-comment rulemaking process.

A Northern District of Texas judge granted a preliminary injunction in December halting the enforcement of mandates for Head Start programs in Texas. The Biden administration didn't appeal the injunction and has since filed motions to dismiss and for summary judgment in the case, according to court records.

The case is State of Texas et al. v. Becerra et al., case number 5:21-cv-00300, in the U.S. District Court for the Northern District of Texas.

National Guard Vaccine Mandate

In January, Texas sued the Biden administration over its mandate requiring members of the National Guard to be vaccinated against COVID-19, arguing the rule violates the separation of powers. Abbott is the commander in chief of the Texas Army National Guard and Texas Air National Guard, the state claims, and the only one who can set such requirements.

Texas requested a preliminary injunction in February, but an Eastern District of Texas judge has yet to rule on the request, according to court records.

The case is Abbott v. Biden et al., case number 6:22-cv-00003, in the U.S. District Court for the Eastern District of Texas.

Airline Mask Mandate

Texas and Republican U.S. Rep. Beth Van Duyne of Irving sued the Biden administration in February to challenge its airline mask mandate, which the president had at the time extended through mid-April. The lawsuit argues the mandate is unconstitutional and goes beyond the Centers for Disease Control and Prevention's statutory authority.

Following a Florida federal judge's ruling in April that the mask mandate was unlawful, a Northern District of Texas judge has asked the parties to file briefs on how that decision will impact the Texas case.

The Texas case is Van Duyne et al. v. Centers for Disease Control and Prevention et al., case number 4:22-cv-00122, in the U.S. District Court for the Northern District of Texas.

Local Mask Mandates

Texas state officials have challenged the authority of county and city officials to implement mask mandates despite Abbott's executive order banning such requirements. The state has challenged mandates in Harris, Dallas, Bexar and Fort Bend counties, the city of San Antonio and school districts statewide.

So far, three intermediate appellate courts in Dallas, San Antonio and Austin have ruled against the governor and allowed local authorities to continue their face-covering requirements, holding the governor doesn't have authority under the Texas Disaster Act to control how local officials respond to the pandemic.

Several challenges are pending with the Texas Supreme Court.

Additionally, Texas was sued by a group of medically vulnerable children that claimed the governor's mask mandate ban violates the Americans with Disabilities Act, the Rehabilitation Act and the American Rescue Plan Act of 2021.

A Western District of Texas judge granted the children a permanent injunction in November, which Texas appealed to the Fifth Circuit. A panel of appellate judges heard oral arguments in that case in February but have yet to issue a ruling. 

The state high court cases are Greg Abbott et al. v. City of San Antonio et al., case number 21-1079; Greg Abbott et al. v. Clay Jenkins, case number 21-1080; and Greg Abbott et al. v. Harris County, Texas et al., case number 22-0124, in the Supreme Court of Texas.

The intermediate appellate court cases are Greg Abbott et al. v. County of Fort Bend, Texas, case number 01-21-00453-CV, in the Court of Appeals for the First District of Texas, and Greg Abbott v. City of El Paso, case number 08-21-00149-CV, in the Court of Appeals for the Eighth District of Texas.

The federal case is E.T. et al. v. Kenneth Paxton, case number 21-51083, in the U.S. Court of Appeals for the Fifth Circuit.

San Antonio School District Vaccine Mandate

In September, the state sued the San Antonio Independent School District over its announcement a month earlier that all staff would be required to be vaccinated against COVID-19. The lawsuit claims the mandate is unenforceable under the governor's executive orders prohibiting local authorities from issuing vaccine requirements.

The Texas Supreme Court in October issued an emergency stay pausing the mandate while litigation over its legality continues. The state and school district have submitted briefings on that issue to the Fourth Court of Appeals in San Antonio and are awaiting a decision, according to court records.

The case is State of Texas v. San Antonio Independent School District et al., case number 04-21-00419-CV, in the Court of Appeals for the Fourth District of Texas.

--Editing by Orlando Lorenzo.

For a reprint of this article, please contact reprints@law360.com.

Case Information

Case Title

State of Texas v. Biden et al

Case Number

3:21-cv-00309

Court

Texas Southern

Nature of Suit

Other Statutes: Administrative Procedures Act/Review or Appeal of Agency Decision

Date Filed

October 29, 2021


Case Title

E.T. v. Paxton

Case Number

21-51083

Court

Appellate - 5th Circuit

Nature of Suit

3446 Amer w/Disabilities Act - Other

Date Filed

November 12, 2021


Case Title

State of Texas et al v. Becerra et al

Case Number

2:21-cv-00229

Court

Texas Northern

Nature of Suit

Other Statutes: Administrative Procedure Act/Review or Appeal of Agency Decision

Date Filed

November 15, 2021


Case Title

State of Texas et al v. Becerra, et al

Case Number

5:21-cv-00300

Court

Texas Northern

Nature of Suit

Other Statutes: Administrative Procedure Act/Review or Appeal of Agency Decision

Date Filed

December 10, 2021


Case Title

Ohio, et al., Applicants v. Department of Labor, Occupational Safety and Health Administration, et al.

Case Number

21A247

Court

Supreme Court

Nature of Suit

Date Filed

December 20, 2021


Case Title

Abbott v. Biden et al

Case Number

6:22-cv-00003

Court

Texas Eastern

Nature of Suit

Civil Rights: Other

Date Filed

January 04, 2022


Case Title

Van Duyne et al v. Centers for Disease Control and Prevention et al

Case Number

4:22-cv-00122

Court

Texas Northern

Nature of Suit

Other Statutes: Administrative Procedure Act/Review or Appeal of Agency Decision

Date Filed

February 16, 2022


Case Title

Knapp v. Equifax Information Services, LLC et al

Case Number

4:22-cv-00122

Court

Texas Eastern

Nature of Suit

Consumer Credit

Date Filed

February 24, 2022