Texas AG says only school officials, not health authority, can order closures to prevent virus

AUSTIN, Texas — In an advisory opinion issued Tuesday, Texas Attorney General Ken Paxton said only local school districts – and not the local health authorities – can order school closings due to the potential for coronavirus outbreaks.

“While playing an important role in protecting the health of school children and employees, local health authorities may not issue sweeping orders closing schools for the sole purpose of preventing future Covid-19 infections,” he wrote.

Paxton continued, “Rather, their role is limited by statute to addressing specific, actual outbreaks of disease. School officials, both public and private, are the appropriate ones to decide whether, when, and how to open school.”

In his analysis, Paxton cites orders issued by a number of local Heath Authorities across Texas, including El Paso, that he believes overstep the powers granted to them by state lawmakers.

El Paso City/County Health Authority Dr. Hector Ocaranza has directed that schools in El Paso County not reopen classrooms until after Labor Day. There was no immediate response from Dr. Ocaranza as to whether the AG’s opinion would result in him changing his directive.

While the attorney general is Texas’ chief law enforcement officer and is often called upon to give the state’s official view of a law or regulation, these interpretations are not legally binding.

The Texas Supreme Court has ruled on a number of occasions that “Attorney General’s opinions are not, of course, binding on the courts.” However, as the Texas A&M Law School observes, AG’s opinions “are highly persuasive and are generally considered to be authoritative.”

Shortly after Paxton’s guidance was issued Tuesday, the Texas Education Agency reversed course and announced that the state would no longer fund schools that remain closed under a local public health mandate.

Gov. Greg Abbott, who toured parts of south Texas hit by Hurricane Hanna, didn’t address Paxton’s guidance directly when speaking with reporters in Corpus Christi. But he said school opening decisions are best left to local education officials with input from health authorities.

“We have a duty to ensure we do not lose a generation of students because of this pandemic,” Abbott said. “We have an obligation to step up and make sure they are educated about reading, arithmetic, and things like that, but also they are educated in how to respond to challenges that may come their way in life. Pediatricians all recommend the best learning environment for a child is going to be in the classroom.”

The Texas State Teachers Association sharply criticized Paxton.

“We trust health experts, not the attorney general, when children’s lives are at stake,” the group said in a statement.

The request for the Paxton’s opinion was made by the mayor in Stephensville, which is located about 90 miles southwest of Dallas-Fort Worth. You can read Paxton’s entire response below.

(The Associated Press and the Texas Tribune contributed to this report.)

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