Mask Order Standoff in Texas: Attorney General vs. Austin and Travis County

It's pandemic déjà vu in the Lone Star State, with local governments wanting to protect their constituents from an increase in viral transmission, a power preempted by Gov. Abbott's executive order. Attorney General Ken Paxton lost the first round.

March 15, 2021, 8:00 AM PDT

By Irvin Dawid

Big cities in Texas have been here before in the pandemic. During the beginning of the summer surge, they wanted to protect the safety of their constituents from the virus but were prevented from issuing mask mandates due to a gubernatorial executive order that took away their authority to do so. Gov. Greg Abbott reversed his position on mask-wearing and issued a statewide mask mandate on July 2 when daily new coronavirus cases were averaging 6,500, according to The New York Times Texas coronavirus tracker, and increasing rapidly.

Eight months later on March 2, with daily new cases averaging 7,300, Abbott reversed course again, rescinding the mask mandate and allowing businesses "to open 100%." The major difference was the coronavirus trajectory, having plunged from an average of above 23,000 daily new cases on Jan. 16. The order took effect on March 10. By then, the 7-day average of daily new cases had dropped by a third to 4,900.

Local defiance

Austin Mayor Steve Adler and Travis County Judge Andy Brown have chosen to defy the governor's relaxation of the mask mandate, relying instead on emergency orders issued under the authority of Austin Public Health, which serves the state capital and surrounding county.

"Austin authorities acknowledged that city governments alone can't impose mask orders, but argued that public health authorities can," writes Juan Pablo Garnham who reports on urban affairs for The Texas Tribune. "The interim head of that entity, Dr. Mark Escott, recommended that the city remain in Stage 4, which, according to the local guidelines, still calls for wearing masks."

Last summer, the Austin City Council "authorized Escott to create rules that protected Austin residents from COVID-19," reports Heather Osbourne for the Austin American-Statesman. "So, Austin and Travis County will no longer be enforcing the mayor's or county judge's orders, but those set in place by Escott."

Attorney General responds

The distinction made no difference to Texas Attorney General Ken Paxton who threatened to sue Adler and Brown on March 10 if they did not rescind the city and county mask mandate. He filed suit in Travis County the next day, requesting "a temporary restraining order blocking the local rules, which require businesses to enforce mask requirements and individuals to wear face coverings in public areas," reported Chuck Lindell for the Austin American-Statesman. Paxton claimed that Gov. Greg Abbott's executive order "superseded any local rules that say differently." 

"This case raises a pressing question: who is ultimately responsible for responding to the COVID-19 pandemic and other emergencies?" the lawsuit said. "The Texas Disaster Act charges the Governor — not an assortment of thousands of county judges, city mayors and local health officials — with leading the State’s response to a statewide emergency."

Round 1

"Declining to rush into a decision, a judge in Travis County delayed action on Texas Attorney General Ken Paxton's request for a court order blocking Austin and Travis County from continuing to enforce their mask mandates," reports Lindell on March 11 (source article).

Instead, state District Judge Lora Livingston set a March 26 trial on the issue, saying it made more sense to let all sides fully prepare for one big hearing instead of taking a piecemeal approach to an important topic during a hastily called emergency hearing on Friday.

Livingston's explanation for denying the stay could be interpreted as a mild rebuke of Paxton, who had warned Adler and Brown in his March 10 letter:

"We have already taken you to court under similar circumstances. You lost. If you continue to flout the law in this manner, we’ll take you to court again and you will lose again."

"I don't know why there's any emergency," Livingston said during the hearing, which was held online and streamed on the court's YouTube channel, added Lindell.

"People have been wearing masks for a year. I don't know that two more weeks is going to matter one way or the other," she said.

Correspondent's note: Readers who followed former President Donald Trump's attempt to overturn the 2020 presidential election results in the courts may recall Paxton as the chief plaintiff in a brief filed in the U.S. Supreme Court on Dec. 9, supported by 16 other Republican state attorneys general and 126 House Republicans. The court rejected it two days later.

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Friday, March 12, 2021 in Austin American-Statesman

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