Dave Rosenthal

Dave Rosenthal

In the weeks since Fort Bend ISD instituted a mask mandate, filed a brief with the Texas Supreme Court opposing the local health department’s ability to do so, and then revoked the mask mandate in the course of days, district officials have been largely silent about what led to the decisions.

But in a series of email exchanges with the school board’s legal representative, the attorney defended the decision to withdraw the mask mandate, and acknowledged that Dave Rosenthal, president of the district’s board of trustees, was responsible for the decision to file a brief with the Texas Supreme Court.

The attorney’s defenses are the latest news in a battle over Gov. Greg Abbott’s executive order banning mask mandates – a dispute featuring several counties and school districts across the state - that has wound its way through the courts and largely fallen along partisan lines.

“As I am sure you are aware, the governor’s order is no longer subject to any temporary restraining order or temporary injunction order,” said Rick Morris, a partner with the Houston firm Rogers, Morris & Grover and attorney for the FBISD board of trustees. “According to state law, the governor’s order has the effect of law.”

Essentially, the decision to remove the mask mandate came down to the fact that trustees in a 4-3 vote instituted a mask mandate as long as the mandate complied with state law, Morris said. A review of the video confirms the wording of the measure.

Legal decisions made after the board voted, however, called into question whether such a mandate was still in compliance with state law, Morris argues.

Many local school districts and governments across the state have argued Abbott doesn’t have the legal authority to prevent mask-wearing requirements amid spiking cases of the delta variant of the coronavirus.

Trustees in FBISD, for instance, voted to institute a mask mandate in August as cases in the district’s schools increased rapidly. That has not changed. As of Aug. 23, the district had about 665 coronavirus cases among students and staff, according to the district’s data.

That number had increased to about 3,940 cumulative cases as of Sept. 9, according to the district’s data.

Little more than 48 hours after the mask mandate, the district announced it would no longer be in place because of a Texas Supreme Court ruling.

District officials since then have been largely silent about the specifics of that decision.

Sherry Williams, a spokesperson for the district, referred all questions about who was ultimately responsible for that decision, and a separate one to file a brief with the Texas Supreme Court, to Rosenthal and the board’s attorney.

Rosenthal did not respond to a request for comment by Friday afternoon. Other members of the board declined to comment about the matter.

Morris, however, argued that baked into the original measure was the fact that a mask mandate wouldn’t last if it no longer complied with state law. It no longer does, Morris said.

The Texas Supreme Court in August sided with Abbott’s request to overturn a Bexar County temporary injunction against Abbott’s executive order. That injunction had briefly given the county the ability to institute a mask mandate, according to an article on KSAT.

While temporarily removing that injunction, the court made no decision on the case as a whole.

“The Supreme Court is currently considering whether the governor’s order exceeds his statutory authority, but until the Supreme Court decides the issue, the governor’s order is in effect,” Morris said.

Not every county and school district in Texas has used that ruling as a reason to withdraw their mask mandates, however.

Legal experts have told the Fort Bend Star it will be some time before the Texas Supreme Court makes a definitive ruling in the ongoing spat over mask mandates. Most of the ongoing rulings have been over procedural issues, according to attorneys.

And Texas Attorney General Ken Paxton in court documents acknowledged neither he nor Abbott actually had power to enforce the ban on mask mandates, according to the Texas Tribune. And the Texas Education Agency has further given districts agency by providing guidance that they would not enforce the mandate ban until the issue wound its way through the courts.

It’s not clear why FBISD trustees haven’t brought the issue of mask mandates back to an agenda since the reversal.

Morris argued no one person is responsible for overturning the mask mandate – that it was baked into the original measure trustees passed.

“There never was a choice to override the mask mandate,” Morris said. “The motion approved by the board stated that the mandate would remain so long as it complied with state law. So, there was no need for further board action or decision. Our firm merely advised the board as to the status of the litigation in Texas.”

The other measure that happened without a board vote – the decision to jointly file an amicus brief with Lamar Consolidated ISD seeking to end Fort Bend County Health & Human Services’ ability to require masks – came at the behest of Rosenthal, Morris said.

“The filing of the brief was authorized by the board president,” Morris said.

Attorneys representing both districts in August filed an amicus curiae brief with the state Supreme Court, arguing Fort Bend County Health Authority Jacquelyn Johnson-Minter does not have the authority to issue a mask mandate.

The filing is consistent with what both Johnson-Minter and trustees have held before, Morris argued.

There is no statutory requirement that a board vote each time a district files a lawsuit, but it’s generally a good idea to do so, Morris said. But this brief filing was not the filing of a lawsuit, Morris argued.

“You may remember this was an issue early in the pandemic when some area county and city health authorities (not Fort Bend County) threatened to close school districts,” Morris said. “It has always been the FBISD’s position that the school districts decide when to close schools.”   

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