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Texas AG says local health authorities may not issue sweeping orders to close schools

Health departments from Dallas and Tarrant counties issued orders which prevent in-person lessons until after Sept. 8 and Sept. 28, respectively.

Updated at 2:40 p.m. to include information from Fort Worth ISD and Dallas County Judge Clay Jenkins.

Texas Attorney General Ken Paxton issued a legal opinion letter Tuesday that said local health authorities may not issue sweeping orders to close schools for the purpose of preventing future COVID-19 infections.

Health departments from Dallas and Tarrant counties have issued orders within the last two weeks that prevent in-person lessons until after Sept. 8 and Sept. 28, respectively. Denton County Public Health issued a recommendation Monday that schools should start online-only and delay in-person classes to Sept. 8.

“Their role is limited by statute to addressing specific, actual outbreaks of disease,” Paxton said in the letter, in part. "School officials, both public and private, are the appropriate ones to decide whether, when, and how to open school.”

The Dallas County and Tarrant County said they worked with local district leaders before the orders were announced.

The Texas Education Agency issued additional guidance Tuesday that said health authority orders may not conflict with the governor's executive orders and must apply control measures that are required by his order.

"Consequently, a blanket order closing schools does not constitute a legally issued closure order for purposes of funding" online-only lessons, the TEA said.

Funding will also not be affected if a district is planning to phase in the return to on-campus learning to ensure that the health procedures run correctly.

Fort Worth ISD officials said Tuesday that it is their belief that the guidance from Paxton is not binding and they will continue to follow the Tarrant County health order.

Dallas County Judge Clay Jenkins said in a tweet that Paxton's letter "won't change much" in the county since superintendents and educators were working collaboratively.

In Denton County, district leaders said they would take a look at the recommendation and announce any changes regarding the school year.

“Education of our children is an essential Texas value and there is no current statewide order prohibiting any school from opening,” Paxton said in the letter. “While local health authorities may possess some authority to close schools in limited circumstances, they may not issue blanket orders closing all schools on a purely preventative basis. That decision rightfully remains with school system leaders.”

Parents and students protested outside Tarrant County Judge Glen Whitley's office Monday afternoon holding signs in support of reopening schools sooner with messages like "make Texas free again" and "open the schools."

"I don't think it's fair for the homeless children who can't afford technology and computers to not have a place to learn when everybody else is more fortunate to have a place," one little girl at the protest told WFAA.

Whitley read Paxton's letter at the county commissioner court meeting Tuesday morning.

"The decision is now back in the laps of the public schools’ school boards. And in the case of the private schools, it’ll be in their individual boards to make those decisions," Whitley said at the meeting. "Again, local, elected officials that are dealing with those particular areas will get to make the decisions, and I think that’s the right thing to do.”

Teachers at Dallas ISD's latest school board meeting shared their concern for the spread of COVID-19 at schools and among teachers.

"We cannot bring back a teacher or a child who falls victim to this illness," one teacher said. "Our teachers and school staff are not expendable."

On Monday, the state added 675 deaths to its count on Monday and reported 4,267 new cases, which is the lowest daily count since July 5.

The letter named other counties that have issued similar orders: Bexar, Harris, El Paso, Hidalgo, and Waco-McClennan. The city of Laredo also issued a similar order.