By Katie Buehler

Law360 (May 12, 2020, 11:11 PM EDT) -- Texas Attorney General Ken Paxton took aim at local coronavirus-related restrictions on Tuesday, telling Dallas County it was wrong to warn law offices not to reopen as essential businesses and Austin that it can't require restaurants to trace contacts of their customers.

Local officials in Dallas County, Austin and San Antonio have exceeded state recommendations, and several provisions of their public health orders are unenforceable, Paxton said in a series of letters.

Paxton's office warned Dallas County Judge Clay Jenkins, the county's top executive, that he couldn't prohibit law offices from reopening before Friday. Judge Jenkins said in a May 4 letter that he interpreted state orders as not permitting law offices to reopen when restaurants and retail stores do.

But Paxton said that, under Texas Gov. Greg Abbott's executive orders, law offices are considered essential businesses and are allowed to reopen. Many law firms told Law360 in late April they wouldn't be reopening offices in the near future.

"Unfortunately, a few Texas counties and cities seem to have confused recommendations with requirements and have grossly exceeded state law to impose their own will on private citizens and businesses," Paxton said in a statement Tuesday.

Judge Jenkins released a statement late Tuesday saying he believes his orders are in line with the governor's executive orders and urging Texans to listen to public health official recommendations.

"We intentionally modeled the public health guidelines based on the governor's recommendation, never imagining he did not want his own guidelines followed," Judge Jenkins said. "I ask the public to make decisions based on the recommendations of public health professionals: our lives depend on it."

Meanwhile, the attorney general's office called an Austin public health order "Orwellian." The city has encouraged restaurants to keep track of all customers who dine in, including the day they visited, where they sat and personal contact information. The attorney general's office said the guidelines go beyond mere encouragement and effectively force restaurants to submit to tracking customers out of fear that those who don't participate will be called out.

"In addition to the threat of exposure, the city's Orwellian order raises privacy concerns and is also likely superseded by the governor's order," wrote Ryan M. Vassar, deputy attorney general for legal counsel. Vassar signed all three letters.

The Austin order calls for logs to be maintained for a one-month period and to remain in the hands of the businesses, not the city, according to the city's website. The logs are supposed to help public health authorities if they need to conduct contact tracing and wouldn't be used for law enforcement.

A representative for the office of Austin Mayor Steve Adler didn't immediately respond to requests for comment.

Paxton's office also sent a letter to San Antonio and surrounding Bexar County with similar warnings to those given to Dallas and Austin officials.

The cities and counties were warned that they can't require residents to wear face masks in public. Abbott's executive orders encourage Texans to wear face coverings when they are out of their residences but don't require it.

Dallas County's order requires all residents over the age of 2 to wear face masks. Austin's order requires masks for all residents over the age of 6, and San Antonio's order requires masks for all residents over the age of 10.

Paxton's office told local officials that these requirements strip Texans of their freedom.

"Instead, the governor's order recognizes that Texans will act responsibly and make smart decisions to protect themselves and their families," the letters stated. "In contrast, your order purports to strip Texans of their agency. Although your orders 'require' individuals to wear masks when they leave their home, they are free to choose whether to wear one or not."

San Antonio Mayor Ron Nirenberg's office couldn't be contacted.

Paxton's office urged the county and city officials to "act quickly to correct mistakes like these to avoid further confusion and litigation challenging the county's unconstitutional and unlawful restrictions." The letters were unclear about who would be pursuing the litigation if the rules weren't changed.

Judge Jenkins and Nirenberg have already been involved in litigation challenging their orders concerning which businesses are essential. A group of businesses led by Dallas salon owner Shelley Luther had challenged the orders in an emergency mandamus petition to the Supreme Court of Texas, which was denied last week.

Luther earned national attention recently after Dallas County District Judge Eric Moye sentenced her to seven days in jail for violating a court order and opening her salon before May 8, when Abbott had ordered salons could open. Abbott and Paxton chided the judge for following penalties Abbott had laid out in his own executive orders, which he walked back later in the week.

Abbott's orders originally carried fines of up to $1,000 and up to a 180-day jail sentence for violators. But on Thursday, he eliminated jail time as a possible punishment.

Paxton's office told Austin and San Antonio that their orders still include jail as a punishment and are in violation of the governor's orders.

--Editing by Nicole Bleier.

For a reprint of this article, please contact reprints@law360.com.