Shoppers at H-E-B on W. Oltorf wear face masks in April 2020 (Photo by Jana Birchum)
District Judge Lora Livingston has denied Texas Attorney General Ken Paxton’s petition for a temporary injunction against Austin’s public health rules requiring face masks be worn to reduce the spread of COVID-19.
Following a remote hearing today, Livingston ruled that the state didn’t demonstrate its right to prevent Austin and Travis County officials from leaving local mask mandates in place in the wake of Gov. Greg Abbott’s rollback of his statewide mandate earlier this month. The governor’s GA-34 executive order, which went into effect March 10, eliminated the mask requirement Abbott had imposed in July during a prior COVID-19 surge and allowed all Texas businesses to reopen at full capacity.
“I’m trying to understand why the person with the deadly virus should have more power than the person trying to stay alive and not catch the virus.” – Judge Lora Livingston
However, local Health Authority Emergency Rules adopted last summer by Interim Health Authority Dr. Mark Escott still require masks be worn in public; those rules are enforced by local ordinance, a power broadly granted to Texas cities under state law. Paxton swiftly filed suit two weeks ago against the city and county, Mayor Steve Adler, County Judge Andy Brown, and Escott to force the issue, but Livingston denied the state’s request for a temporary restraining order as she set the case for a hearing today (March 26).
At this morning’s hearing, Paxton staff attorneys Todd Dickerson and Chris Hilton argued that local officials’ power to issue COVID-19 emergency orders is subservient to the governor’s executive orders issued under the Texas Disaster Act, which outlines the state’s emergency powers. Paxton’s prior challenges to pandemic orders in El Paso and in Austin – where Adler sought to limit dining hours on New Year’s weekend – succeeded on these grounds.
However, attorneys for the defendants argued that local Health Authority Emergency Rules, and their enforcement by cities and counties, are in fact authorized under the state Health and Safety Code, separately from the Disaster Act, for a reason. “This is exactly how this network of statutes [is] supposed to work,” argued Leslie Dippel, the director of civil litigation in the County Attorney’s Office. “The state steps in when the threat is statewide and in need of a statewide response. Local jurisdictions come in to cope with a public health concern – whether it be rampant flu, measles, COVID, whatever public health concern it is. They have expressed authority to act outside of that power,” and their doing so doesn’t hinder or delay the governor’s emergency response in any way.
Given that reading, Livingston asked Dickerson what interest the state had in preventing localities such as Austin from taking steps to keep people safe from COVID-19.
“It is preserving the freedom of individual choice,” said Dickerson.
This logic proved vexing to Livingston, who offered a hypothetical where one customer in a neighborhood bakery is wearing a mask and another is not. “You’re telling me that … my neighbor can freely walk around, in light of COVID’s highly contagious nature, without wearing a mask – putting me, next to him in line at the bakery, at risk,” Livingston asked, “and his individual freedom not to wear a mask is supposed to outweigh my individual freedom to be protected from his contagious germs? I’m trying to understand why the person with the deadly virus should have more power than the person trying to stay alive and not catch the virus.”
Escott’s Health Authority Emergency Rules are currently set to expire April 15, but Paxton is expected to appeal today’s decision promptly.
This is a developing story. See more online and in next week’s print issue, which hits stands on Thursday, April 1.