In the ongoing mask conflict between Dallas County Judge Clay Jenkins and Commissioner J.J. Koch, the state attorney general on Friday sided with Koch.
But Jenkins, the county’s top elected official, is firing back in his own claim against Koch, saying that Republican Gov. Greg Abbott’s executive order barring local governments from imposing mask mandates is unconstitutional and “usurps the power of the legislative and judicial branches.”
Jenkins mandated masks at the Dallas County Commissioners Court’s Tuesday meeting due to concerns over the highly contagious COVID-19 delta variant. When Commissioner J.J. Koch, who represents northern Dallas County, refused to wear a mask, Jenkins had him removed.
A judge on Friday denied a temporary restraining order requested by Koch a day earlier over the mask conflict with Jenkins, but a lawsuit is pending.
“Masking indoors is an important public safety measure,” Jenkins said in a statement on Friday. “I’m pleased that the Court agrees and has denied Commissioner Koch’s request for a temporary restraining order.”
In a letter to Jenkins, Texas Attorney General Ken Paxton said Friday that Jenkins’ actions violate the governor’s executive order stating “no government official may require any person to wear a face covering.”
Paxton demanded that Jenkins revoke his order by Monday or he would “consider all available options to stop (the) unlawful mandate.”
Jenkins fights back
Jenkins claimed that a Texas Supreme Court order gives him authority to mandate masks. Koch disagreed and said under Abbott’s executive order, Jenkins can’t mandate masks.
Jenkins’ counterclaim in the 116th Judicial District Court asserts Koch’s arguments are not valid and calls Abbott’s executive order “illegal and unconstitutional.”
“[Jenkins] was acting under the authority of an order of the Supreme Court of Texas and looking out for the public health and safety of all participants in any Commissioners Court meeting during a declared state of disaster relating to the COVID-19 pandemic,” the counterclaim says.
It goes on to argue that Abbott’s own order says that “business activities and legal proceedings are free to proceed without COVID-19-related limitations imposed by local governmental entities or officials.”
As the highly contagious and deadly delta variant is spreading, Dallas County raised its COVID-19 threat level to red and hospitalizations are surpassing last summer’s surge. The Centers for Disease Control and Prevention released guidelines last month recommending vaccinated and unvaccinated people wear masks indoors.
Jenkins’ response argues that since the Texas Constitution vests judicial power in commissioners courts, his actions were lawful under the emergency order enacted by the Texas Supreme Court in July, which says that all state courts may “take any reasonable action to avoid exposing court proceedings and participants to the threat of COVID-19.”
‘He can participate’
On Friday, a district court judge denied Koch’s request for the temporary restraining order against Jenkins, arguing Koch’s claim that the county judge’s actions caused him imminent harm and infringed on his ability to perform his job duties did not have merit.
“[Koch] can speak, he can hear, he can participate in the proceeding if he chooses to do so virtually because he does not want to wear a mask,” Judge Tonya Parker said at a teleconference hearing. “There’s not been any response to the court’s repeated inquiry as to what is the harm in wearing the mask.”
After being removed from the Commissioner’s Court meeting on Tuesday, Koch joined virtually but refused to vote, saying he did not feel comfortable doing so.
Warren Norred, Koch’s attorney, said even if Koch is able to vote virtually, he cannot participate at the same level as every other commissioner.
“People who are there physically have an advantage,” Norred said. “There’s no doubt.”
