DALLAS (CBSDFW.COM) – Attorneys for Dallas County Judge Clay Jenkins and Governor Greg Abbott made their arguments in court regarding mask mandates on Tuesday, August 24.

No matter what District Judge Tonya Parker’s decision is, legal experts say it’s likely to be appealed before heading to the 5th Court of Appeals and then ultimately the Texas Supreme Court.

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Judge Jenkins argues he has the right to issue a local mask mandate if it means protecting public health and that he’s given the power to do so under the Texas Disaster Act.

Governor Abbott believes he has the authority to issue a statewide order that bans them. His attorneys arguing today that it’s a matter of law and also say he’s given the power to do so under the Texas Disaster Act.

“When he issued that emergency declaration, the Texas Disaster Act kicked in, gave him some ability to do what he’s doing and negate what’s happening in respect to the pandemic,”

SMU Dedman School of Law Professor Eric Cedillo said. “It also gave local authorities that same ability to do things, to take mitigation efforts into account, etc.”

Cedillo is not affiliated with the case, but watching closely.

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“So it’s a question I think at this point for many of the judges and justices on whether or not that kind of goes along with what the Texas Disaster Act does and what the actual mitigation is all about,” he said.

“I would imagine again she – with the TRO, temporary restraining order – she will allow for the injunction to continue, meaning the mask mandate will continue. That will immediately be appealed to the 5th Court of Appeals here in Dallas by the Governor and Paxton and I’m assuming they would side again with Judge Parker. It’ll probably be immediately passed on to the Texas Supreme Court which would make a ruling by I would imagine sometime this week.”

During testimony, Dallas County Health Director Dr. Philip Huang said the Delta variant has spiked hospitalization rates among the unvaccinated and children who are not yet eligible to be vaccinated.

Something that’s reflected in UT Southwestern’s latest COVID-19 hospitalization admissions statistics.

“The average age of our patients continues to decline,”DFW Hospital Council President and CEO Stephen Love said. “We’re treating many in their 20s, 30s, 40s. Even if you look at 12-15 group, which is the newest group that was eligible, only about 30% have gotten vaccinated.”

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Governor Abbott tweeted Tuesday, “The Covid 7-day positivity rate has now declined for two straight weeks. It topped out on August 9th at 18.72%.Since then, it has steadily declined to 15.76%. States hit earliest with Delta are now seeing a decline in Covid cases. Texas may soon see a similar decline in cases.”

Erin Jones