Texas Judge Rules Against State in Power Struggle Over Masks

A state judge said she did not understand the logic of giving Texas business owners authority to mandate masks but not local health officials.

A worker passes a closed nightclub in Austin, Texas, last May. (AP Photo/Eric Gay)

(CN) — A Texas judge on Friday rejected the state’s claims Governor Greg Abbott has unlimited authority to force cities and counties to comply with his Covid-19 orders under the Texas Disaster Act.

Citing the need to help businesses struggling to stay afloat amid state-imposed Covid-19 capacity restrictions, Abbott, a Republican, issued an order effective March 10 allowing all businesses to open 100% and repealing his mandate for Texans to wear masks in public.

But the Democratic leaders of Travis County and its seat, the capital city Austin, said they would continue enforcing social distancing and mask rules they put in place last year, provoking a lawsuit from the state.

Covid-19’s siege on the state is easing as more than 9 million Texans have received at least one dose of vaccine, and Abbott said Thursday Covid hospitalizations are at their lowest level in more than five months.

Mark Escott, acting health authority for Austin and Travis County, a defendant in the lawsuit, acknowledged in Friday’s virtual hearing Travis County has seen a decline in Covid hospitalizations and new cases.

But he said the county has been in the “neighborhood of 100 new cases a day” in March and hospitalizations are going up and down. “Basically we’ve hit a wall in terms of our decline in cases,” he said.

With only around 10% of residents fully vaccinated, Escott said, “It’s clear we haven’t beaten Covid-19 yet. And it’s clear that if we are able to maintain those protections it’s going to buy us time to get more people vaccinated. And ultimately it’s going to save lives.”

He said the University of Texas-Austin’s Covid-19 Modeling Consortium recently released projections based on different scenarios. He said the researchers found if Austin kept the restrictions in place, Covid cases would go down quickly, bottom out in May and June and stay flat.

But Escott said the projections for removing the mask mandate, combined with the spread of virus among people who gathered during spring break and new Covid-19 variants circulating that may be resistant to vaccines, predicted right now Austin and Travis County would be in a plateau.

“And in the coming weeks we’ll begin to increase and we’ll continue to surge into May and into June. To me that’s unnecessary risk,” he added.

People can be charged with a misdemeanor punishable with a max $1,000 fine for not wearing a mask in Austin. Travis County’s companion order authorizes fines for mask scofflaws up to $250. But the city and county have admitted in the litigation the mask orders aren’t being enforced.

The litigation is round two of Covid-restriction battles between the state, Travis County and Austin.

The state sued the city and county late last year after they barred restaurants from offering dine-in service and ordered bars to close from 10:30 p.m. to 6:00 a.m. from New Year’s Eve to Jan. 3.

The Texas Supreme Court struck down the order after it was upheld by lower courts.

Texas claims that decision and an appellate court order last fall striking down a curfew El Paso County implemented to try to slow down a spike in cases that overwhelmed area hospitals, forcing them to bring in refrigerated trucks to store the bodies of people dying from the disease, established local officials cannot supersede the governor’s authority after he has declared a state emergency under the Texas Disaster Act, which he did last spring.

Travis County District Judge Lora Livingston, a Democrat, asked state attorneys if they were saying Abbott has unlimited power once he declares a disaster.

“He could…say because he’s declared a disaster you must not wear red on Tuesdays and you may not wear red on Thursday, that is an order the governor could put in place, and we couldn’t do anything about it because under the Texas Disaster Act he has unlimited power,” she said. “Is that the position your taking?”

“Your honor, I would say it has to at least be reasonable,” Texas Assistant Attorney General Todd Dickerson said.

He said one of the Texas Disaster Act’s core purposes is to “return the situation to normal” so the Legislature was not just concerned about health and safety when it passed the law, but also individual rights.

Livingston was unpersuaded. She noted that Austin and Travis County are arguing the Texas Health and Safety Code gives local authorities power to enforce laws to protect residents’ health.

“Returning to normal would allow local health authority to determine there’s a problem and take action,” she said.

She also said she is puzzled at the state’s logic as Abbott’s latest order allows business owners to mandate customers wear masks, but does not give similar authority to local health officials.

“Why would we give effect to a law that prevents the doctors from dictating who wears a mask and who doesn’t in a public place and delegate that to an individual business owner… who must not be required to be informed by any science or any health?” she said.

Flustered by the judge’s rapid-fire questioning, Dickerson said it was a false comparison.

“The real issue is going to be the comparison between Governor Abbott’s ability to make those decisions and local officials. Now local officials want the power to make that decision but they don’t have it,” he said.

Livingston issued an order after the hearing rejecting the state’s request for a temporary restraining order to block the local rules. She gave no explanation of her decision in the two-page order.

The state is expected to immediately appeal.

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