Deanna and Laura McFerrin Hogan
A Dallas couple has joined a lawsuit to allow local officials to decide what’s best locally
DAVID TAFFET | Senior Staff Writer
taffet@dallasvoice.com
Dallas lesbian couple Deanna and Laura McFerrin Hogan are among six families who last week became counter-plaintiffs supporting Dallas County Judge Clay Jenkins in his lawsuit against Gov. Greg Abbott and Abbott’s executive order, issued in May, prohibiting mask mandates in public places and governmental buildings, including public schools.
Jenna Royal
Deanna McFerrin Hogan said this week that she and her wife joined the lawsuit because they want their children to be safe in school.
Jenna Royal, attorney for the intervening parents, is also a mom, and she wants children to be safe in school, too. She explained that the lawsuit the group filed is “on behalf of medically fragile students.” Those students, she said, are best served learning in person in school.
Under the Disaster Act, mayors, county judges and the governor all have the power to make disaster declarations. Usually, they’re issued locally, and the governor may intervene to help during especially bad situations.
Royal used the 2019 tornado in Dallas as an example: Jenkins issued a disaster declaration knowing where rescue and repair crews needed to be deployed. The governor intervened to offer help from the state.
What the governor didn’t do in 2019, Royal said, was issue his own disaster declaration forbidding the use of ambulances. After all, she added, an executive order shouldn’t make the situation worse.
“The governor, under the code, can take power away only if the local official’s order is not mitigating the situation,” Royal explained.
In Texas, there have been few statewide disasters. Hurricanes have affected large portions of the state, and local disaster declarations have been aided by the governor calling out national guard troops to help in those situations.
The freeze this winter affected the entire state, and the disaster included all of Texas other than El Paso, which isn’t on the Texas power grid. State coordination may have helped some areas recover quicker.
The COVID-19 pandemic includes most areas of the state, although some sparsely populated areas have been mostly spared. The response may include different approaches for cities than rural areas, Royal explained.
A local response is appropriate, she said, with the state making recommendations. “But the governor can’t say, ‘You are not allowed to make this better,’” Royal continued. “We have protocols in place from last year that worked.”
As children began to return to school last spring, social distancing, masks, Plexiglas barriers and other procedures — such as lunch in the classroom with each student eating at their own desk — were put into place that kept students, teachers and staff relatively safe from infecting each other.
Last week, Dallas County District Judge Tonya Parker issued an order in Jenkins’ lawsuit, enjoining Abbott’s executive order and ruling that local mask mandates could stand. The governor appealed to the Texas Supreme Court, and that court put a stay on mask mandates without specifically naming any local officials and their orders. So local officials like Dallas Independent School District Superintendent Michael Hinojosa and Jenkins both declared that since they were not named or specifically ordered by the Supreme Court to lift their mask mandates, those mandates would stand.
The stay expires on Tuesday, Aug. 24, so the case will return to Parker’s courtroom then. Her order may be appealed to the 5th Court of Appeals in Dallas or directly to the Texas Supreme Court. Federal courts would not be involved, Royal said, unless a constitutional question arose.
What Parker will hear is Jenkins’ case, and Jenkins’ case will be appealed, she explained.
Only if Jenkins loses at the Supreme Court level would Royal’s case representing the intervening parents be heard separately.
“We have slightly different legal grounds than Clay,” she said. “If he’s overturned, we can go forward.”
Royal noted that there are a number of other lawsuits raising the same issues. But one thing Royal’s not looking to do is turn this into something political; it’s solely about protecting kids and teachers. She said: “I’m not looking at this through a political lens,” then added that she is strictly looking at what the governor may or may not do by law.
At school board meetings she’s attended in her own Collin County school district, Royal said parents seem to be in favor of masking up for the safety of teachers, staff and students by a margin of about 6-1. Virtual options for classroom instruction have been taken off the table by the governor. But Royal said parents want that option, especially for when classes or schools go into quarantine.
McFerrin Hogan said she joined the lawsuit to protect her own two children, who are 7 and 10 years old. She said she considers the governor’s order illegal because it endangers her children’s lives.
“If an entity like DISD wants to require masks, they should be able to do that,” McFerrin Hogan said. “Conditions may be different in different parts of the state.”
She noted that the governor is threatening to remove funding from DISD. “He’s saying he’s the ultimate voice,” she said. “Hinojosa has jurisdiction over DISD.”
And the Legislature has jurisdiction over the budget. The governor, she said, can’t just take funding away.
As for what she’s seen so far during this newly begun school year, McFerrin Hogan said it seems everyone at her children’s Oak Cliff school seems to be on board. “When we’ve taken the kids to school, all the students, all the teachers, all the staff had masks on,” she said.
About the idea of taking away anyone’s freedom, she said, “You can’t go into a restaurant and smoke.” While smoking is legal, you can’t do it where it will affect other people’s health.
The masks worked.”
McFerrin Hogan said her kids are prone to colds. For the nine weeks they were in school wearing masks they remained healthy — not only no COVID, but no colds. Not even sniffles.
“I just want all teachers, staff and students protected,” she said. “They have a thankless job.
Not only aren’t they paid enough, their lives are at risk from armed gunmen that could enter their class — and now COVID.”
But for COVID there’s something that can be done: “Wear masks and get a vaccine,” she said.
The alternative? “A teacher died at Grayson’s school,” adding that it was tough for her 10-year-old son and his classmates to get that news.
Royal said she admires the parents who’ve joined the lawsuit, adding, “It’s not easy [for them] to tell their stories,” she said.
Yet the parents have committed themselves to telling their children’s stories over and over to protect them and keep them healthy. And for that reason, Royal said, “I’m proud to represent them.”