Texas Judge Won't Stop Austin's Mask Mandate

A Texas judge declined Friday to stop the city of Austin and Travis County from enforcing a mask mandate, rejecting arguments from the state that it ran afoul of a governor's order lifting statewide masking requirements.

Travis County District Judge Lora Livingston — who declined to enjoin the measure last week and instead set the matter for a hearing — made the ruling Friday afternoon, following a hearing that lasted about three hours.

"I cannot find that plaintiff met its burden to demonstrate the right to the relief it seeks," she wrote in a brief letter explaining the ruling.

Texas Attorney General Ken Paxton sued Austin's mayor and the Travis County judge and health director for failing to lift the mask mandate after he sent a letter March 10 telling them to rescind it. Paxton said in a tweet that he sued the officials after they "blew me off" in response to his demand that they lift the mask mandate.

The latest order from Gov. Greg Abbott says that "no person may be required by any jurisdiction to wear or to mandate the wearing of a face covering."

In the lawsuit, which is seeking temporary and permanent injunctive relief, Texas argues that under the Texas Disaster Act, only the governor and "not an assortment of thousands of county judges, city mayors and local health officials" has sole responsibility for leading the state's response to the coronavirus pandemic.

Christopher Hilton of the Texas Office of the Attorney General, who represents the state, told Judge Livingston during the hearing that Austin and Travis County were essentially "urging an interpretation [of the Texas Disaster Act] that would give thousands of local officials veto power of the state's response to a statewide emergency."

Samer S. Birring of the City of Austin Law Department argued during the hearing that if the purpose of an injunction is to ensure no irreparable harm is done and to preserve the status quo, both factors cut against the relief the state is seeking here.

The rules the state is challenging, he said, have been in place since July, so the status quo supports keeping them in place. He also admitted into evidence a July 8 letter from the governor to Mayor Steve Adler approving of the additional safety measures and calling them an "important step toward reducing the spread" of the virus.

Attorneys for the state pointed to recent rulings that they said demonstrate Austin and Travis County are clearly acting outside the scope of their authority with the mask mandate. Those examples included a January ruling from the Texas Supreme Court that halted the municipalities from prohibiting bars and restaurants from serving dine-in customers late at night over the New Year's holiday, as well as a November ruling from the Eighth Court of Appeals that halted an order that would have established a curfew and shut down nonessential businesses.

But Birring said those cases are different. In this matter, he said, the state of Texas is taking issue with local guidelines that have been in place since last summer, whereas the Austin and Travis County order related to New Year's operations wasn't in place yet when the state sued to stop it. And the Eighth Court of Appeals lawsuit was brought not by the state but by aggrieved business owners in El Paso, he said.

He also argued that the mask orders were issued by local public health officials under the explicit authority granted to them by Texas Health and Safety Code Chapters 121 and 122, and they don't usurp the governor's power under the separate Texas Disaster Act.

After both sides had rested, Judge Livingston told the parties she was experiencing a "a little bit of puzzlement" over a litigation strategy that didn't involve admitting into the record evidence of numerous statements by Abbott that she said would seem relevant.

"The governor has, on more than one occasion, said something to the effect of 'one size does not fit all in Texas,'" she said. "So at least at times in the pandemic he has suggested local authority is needed. ... On the other hand, he's said we're going to have a statewide order, so I can see why local jurisdictions may be somewhat confused."

She then asked Todd Dickerson of the Texas attorney general's office to explain whether an executive order from the governor must have a relationship "to solving a crisis." Dickerson responded that the governor's actions "would have to fit within the Texas Disaster Act's core purposes."

"And that brings us to a fundamental issue in this case — defendants are ignoring the Texas Disaster Act's core purpose, which is to return the situation to normal," he said, explaining the governor must consider "not just public health and safety ... but individual rights and constitutional rights."

Judge Livingston did not move on from the question, asking it again.

"My question is what is the relationship, if any, between the governor's order and a solution to a statewide problem like COVID?" she asked. "Does the order from the governor have to in some way solve the problem, and isn't that why we give him so much power?"

Dickerson reiterated his point that a return to normalcy is an important part of the governor's calculus. Judge Livingston pushed back, saying normalcy under the Texas Health and Safety Code would entail allowing localities authority to address health and safety concerns.

The judge also questioned the logic of taking decision-making authority away from public health officials who have expertise and a sworn duty to protect public health and giving it to local business owners who are "not required to be informed ... by anything but whim."

Dickerson said it comes down to the balance between individual rights and public health: "Now, the legislature decided to have the governor do that balancing. They didn't leave it to local officials ... and that decision is rational and should be respected."

Adler, Austin's mayor, issued a statement Friday that wearing masks is "the right thing to do" and should be done regardless of Judge Livingston's order. He said since the governor lifted the statewide mandate, the city has "lost four scheduled conferences because of attendee health concerns."

"The pandemic mortality rate for Austin is less than half that of the state average," he said. "We are enjoying that success because our community will do what it takes to protect lives and to best recover, and that means continued masking."

The attorney general's office didn't respond to a message seeking comment Friday.

Texas is represented by Todd Dickerson and Christopher Hilton of the Texas Office of the Attorney General.

Austin is represented by Samer S. Birring, Sara Schaefer and Meghan L. Riley of the City of Austin Law Department.

Travis County is represented by Leslie W. Dippel, Sherine E. Thomas and Cynthia W. Veidt of the Travis County Attorney's Office.

The case is State of Texas v. City of Austin et al., case number D-1-GN-21-001046, in the 261st District Court of Travis County, Texas.

--Additional by Katie Buehler. Editing by Gemma Horowitz.

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



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