Texas attorney general says local health authorities cannot “indiscriminately” shut down schools

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Local health officials do not have the authority to shut down all schools in their vicinity while COVID-19 cases rise, Texas Attorney General Ken Paxton said in nonbinding guidance Tuesday that contradicts what the Texas Education Agency has told school officials.

Shortly after Paxton's announcement, the Texas Education Agency updated its guidance to say it will not fund school districts that keep classrooms closed because of a local health mandate, citing the attorney general's letter. Districts can receive state funding if they obtain TEA's permission to stay closed, as allowed for up to eight weeks with some restrictions.

The change represents an about-face for the agency, which previously said it would fund districts that remained closed under a mandate. It will impact schools in at least 16 local authorities, many in the most populous counties, that have issued school closure mandates in the past month.

Dallas County Judge Clay Jenkins, whose county is among those with a mandate to close schools, said local officials will continue to make decisions to keep students safe "regardless of what opinion General Paxton comes up with."

"The only way that it would really screw things up is if Abbott tried to take away the control from the local groups," Jenkins said.

The guidance is non-binding, but local health authorities could face lawsuits especially now that Paxton has weighed in. Paxton's office declined to comment on whether it would sue local health officials that don't retract mandates, saying it could not comment on hypothetical or potential litigation.

After Texas ordered schools to reopen their classrooms this fall, county and city public health officials began to push back, ordering all public and private schools in their areas to stay closed through August and in some cases September.

The officials cited a state law giving health officials authority to control communicable diseases. But Paxton said in the letter that "nothing in the law gives health authorities the power to indiscriminately close schools — public or private — as these local orders claim to do. ... It does not allow health authorities to issue blanket quarantine orders that are inconsistent with the law."

The governor’s executive order allowing all school districts to operate overrules local mandates to close, Paxton said. Local health officials have some authority to order schools closed if people in it are infected by COVID-19, but not as a preventive measure.

Earlier this month, Texas revised its statewide order that schools open classrooms to give officials more local flexibility on how long to continue with entirely remote education, especially in areas where the virus is spreading quickly.

The TEA's previous guidance says that schools could ban in-person classes if ordered to do so "by an entity authorized to issue an order under state law." And the agency confirmed to The Texas Tribune earlier this month that school districts under such mandates would not lose state funding if they closed classrooms. But it was confusing to education officials and school communities exactly which entities were allowed to issue orders, and when state guidance trumped local law.

Gov. Greg Abbott's office did not respond to a request to clarify this earlier this month.

The confusion resulted in anger and panic in some communities that wanted their schools to reopen. Families protested outside the Tarrant County administration building Monday demanding that officials allow their schools to hold in-person classes before Sept. 28, according to The Dallas Morning News.

Paxton said religious private schools were exempt from following the order in guidance released earlier this month.

Stacy Fernández contributed to this report.