As the Texas war over mask mandates rages in the courts and in school board meetings, state legislators decided to stay out of the fight and leave Gov. Greg Abbott to his own devices.
To stop a growing number of school districts from defying Abbott's ban on mask mandates, the governor had called on Texas lawmakers to put a bill on his desk that would once and for all bar school officials from requiring students, teachers and other school employees to wear face coverings — and put an end to the constant back-and-forth in the courts that has created a confusing patchwork of mask rules across the state.
But in a special session that saw the passage of a number of Abbott's priorities — among them a controversial GOP elections bill and a bill to forbid the teaching of "critical race theory" — the prospect of banning local governments and public schools from creating their own mask requirements never gained traction.
As Abbott and Attorney General Ken Paxton vowed to punish any school district that defied Abbott's ban, a bill by state Rep. Jeff Leach, a Plano Republican, to prevent school boards from putting mask mandates in place fell apart in the final week of the session.
Senate Republicans, meanwhile, didn't even bother to put up a bill dealing with masks, and lawmakers left Austin on Thursday night without weighing in on mask mandates at all.
That left the battle in the courts, where for the past month, the fight between Abbott and cities, counties and school districts has created chaos and confusion as different judges have reached different conclusions about whether to uphold mask mandates or block them.
"I think now people are beginning to engage in anarchy because they recognize that their particular locale may require a mask mandate irrespective of what the governor or anybody else says," state Rep. Harold Dutton, D-Houston, said.
Dutton had his own bill that would have left it up to school boards to decide whether they wanted to require mask-wearing. Last week, he and Leach appeared to reach a compromise on the matter: School boards would be allowed to require masks, but parents could opt their kids out if they chose.
"If a child walks into a school without a mask, I don’t believe it should be the policy of any school district to prevent that child from entering the doors of their public school especially if they have their parents' permission to opt out of that requirement," Leach told lawmakers on the House Public Education Committee at a hearing last week.
But that deal soon fell apart. Leach laid out a number of proposed revisions that Dutton considered unreasonable. For example, public schools would not have been allowed to publish or provide data showing how many students had been exempted from mask-wearing policies.
"That was far beyond what I considered to be allowing the districts to have their own mask policy," Dutton said.
Both bills died when the Legislature ended the special session without passing them.
Abbott and Leach did not respond to requests for comment for this story.
While Abbott and Paxton have threatened local governments and public schools that enact mask mandates that flout Abbott's ban, they have argued in court that they can't enforce it.
On top of that, the Texas Education Agency isn't enforcing Abbott's executive order in schools — which was enough to convince the Biden administration not to pursue a legal battle against the state for blocking school districts' mask-wearing rules.
Some Republicans have acknowledged the confusion. During the House committee hearing Monday, state Rep. Steve Allison, a San Antonio Republican, noted the conflicting messages on masking from all levels of government gives "the appearance of being very dysfunctional."
But there has been little will among state Republican legislators to address that dysfunction, political observers and GOP consultants said.
It's possible GOP lawmakers are waiting on the state Supreme Court to issue some kind of final ruling to settle the myriad legal fights over masks before they move forward with any kind of bill, said Jon Taylor, a political science professor at the University of Texas at San Antonio.
"I don't think any legislator wants to deal with it right now because they know it is radioactive," Taylor said.
Hard-right conservatives have pressured Abbott and Paxton to come down hard on local officials who defy Abbott and enact their own mask mandates.
The governor doesn't appear to have applied that same pressure to sympathetic House lawmakers, conservative political consultant Luke Macias said.
"The reason you're not currently seeing it is because Gov. Abbott is not all that concerned with the fact that his executive orders are being worked around," Macias said.
Whether Abbott faces any backlash from a Republican primary electorate over the lack of legislative movement on mask mandates remains to be seen. Abbott's tough public stance against mandatory mask-wearing may be enough to convince primary voters to give him a pass, said Brendan Steinhauser, a GOP strategist.
"In their mind, (Abbott and Paxton) have been fighting," Steinhauser said. "They have been carrying the banner so I don't think there will be a backlash on the Republican side by people who say ‘you didn't do enough' or ‘you didn’t fight hard enough.'"
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