Austin can continue to apply the local mask warrant for now, the judge says

Austin and Travis County may continue to require masks at least a little longer after a district judge denied Texas Attorney General Ken Paxton’s request for a temporary block of the local warrant.

Paxton sued local officials for refusing to end the term after Gov. Greg Abbott lifted state restrictions earlier this month. Paxton will likely appeal the decision.

District Judge Lora Livingston has not yet handed down a final verdict on the merits of the case, meaning Austin and Travis officials can later be told to comply with state officials.

Meanwhile, county judge Andy Brown said Friday’s ruling at least lengthens the amount of time masks are required in their communities, giving them more time to vaccinate their residents.

“I’ve been doing everything I can to protect the health and safety of people in Travis County,” Brown said in an interview. “And Judge Livingston’s ruling today allows us to continue to do that.”

Abbott ended almost all COVID-19 state security restrictions on March 10, including the state mask warrant, citing declining hospitalizations and COVID-19 cases. Many public health experts said the measure was too early, before most of the state was vaccinated or even eligible for a shot.

In his order, Abbott said “no jurisdiction” can require a person to wear a mask in public if the area does not meet a certain threshold for coronavirus hospitalizations in that hospital region. As a result, many local governments withdrew their restrictions. However, this was not the case in Travis County, where officials said they would continue to require the use of public masks.

Paxton sued Austin and Travis County the day after the state restrictions were lifted. He argued that the Abbott order replaces all local jurisdictions.

State attorneys pressed for the judge to grant an interim order the next day, but Livingston said it would not have been fair to give the defendants just one day to prepare. Therefore, in the meantime masks were requested in Travis County.

“Every day we can keep the mandate of the local health authority mask is a victory,” Austin Mayor Steve Adler said in an interview with The Texas Tribune on Friday. “Being able to keep him in place for the last two weeks, during the spring break, is a victory, no matter how long it lasts.”

Adler said as the number of cases is reduced and eligibility for vaccination is expanded, the city may follow plans to open more businesses, but the mask’s mandate should remain in place.

“You can wear masks and open businesses, you can wear masks and have more students in school,” Adler said, “You can wear masks and do all these things, and it’s such a small price to protect lives and people.”

Texas has seen conditions improve as new COVID-19 cases and hospitalizations have dropped to unprecedented lows since October. Vaccinations are increasing by more than 11.5% of the fully vaccinated population, although black and Hispanic jeans face systemic medical inequalities and are being vaccinated at disproportionately low rates. Starting Monday, all jeans over the age of 16 will be able to sign up for an appointment with the vaccine.

But while the numbers are improving, Dr. Mark Escott, of the Travis County Interim Health Authority, told the court Friday that over the past week he has seen the downward trend decline. And with COVID-19 varieties varying in mix, Escott said the situation could get worse without public health intervention.

“Of course we haven’t passed COVID-19 yet,” Escott said. “And it’s clear that if we’re able to maintain those protections, it will save us time to vaccinate more people and ultimately save lives.”

It’s not the first time Paxton has sued COVID-19 restrictions. In December, Paxton successfully sued Austin and Travis County for local officials to implement an overnight curfew over the New Year’s holiday weekend. However, the case was not decided until after the holidays and officials applied the curfew.

Paxton also blocked the El Paso County order ordering non-essential businesses to close in November.

The end result of the case could have implications for other Texas cities and counties on how local governments can enforce their own public health mandates, even after the state ordered them to end them.

During Friday’s hearing, the discussion focused broadly on the question: What competencies do local public health departments have and how do they affect the governor’s emergency powers?

Austin and Travis attorneys said public health officials have the authority to implement health measures, such as mask warrants, out of the context of the pandemic and therefore should not be affected. by the last order of Texas.

State attorneys argued that Abbott’s emergency powers due to the pandemic outweighed any local order.

Livingston dismissed some of the state attorney’s arguments that not requiring masks allows for individual freedom.

“I try to understand why the person with the deadly virus should have more power than the person trying to stay alive and not catch the deadly virus,” Livingston said.

He pointed to previous examples from the Abbott authority delegation in responding to the pandemic to local governments – and said he understands why officials say they have received mixed messages.

“It must be quite confusing for local officials to know when they are charged, in the mind of the governor, and have the responsibility to react locally and take over local control, and when they should not,” he said. Livingston to state attorneys. “I just needed to let you know that I find this kind of puzzle.”

Neelam Bohra contributed to this story.

Disclosure: Steve Adler is a former chairman of the Texas Tribune board and has been a financial supporter of Tribune, a nonprofit and nonprofit news organization funded in part by donations from members, foundations, and corporate sponsors. Financial supporters have no role in Tribune journalism. Find a full list here.