Austin may continue to apply the local mask mandate for now, says judge

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

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

District Judge Lora Livingston has not yet issued a final decision on the merits of the case, meaning that officers from Austin and Travis can later be instructed to obey state officials.

But in the meantime, County Judge Andy Brown said Friday’s decision at least prolongs the time that masks are needed in their communities – giving them more time to vaccinate their residents.

“I have done everything I can to protect the health and safety of people in Travis County,” said Brown in an interview. “And Judge Livingston’s decision today allows us to continue doing this.”

Abbott ended almost all of the state’s COVID-19 security restrictions on March 10, including the statewide mask mandate, citing reductions in COVID-19 cases and hospitalizations. Many public health experts said the move was too early, before most of the state was vaccinated or even eligible for an injection.

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

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

State attorneys pressured the judge to grant a temporary injunction the next day, but Livingston said it would not have been fair to give the defendants just one day to prepare. Therefore, the masks remained necessary in Travis County in the meantime.

“Every day that we can maintain the mandate of the local health authority’s mask is a victory,” Austin Mayor Steve Adler said in an interview. with the Texas Tribune on Friday. “The fact that we have been able to keep it in place for the past two weeks during spring break is a victory, as long as it lasts.”

Adler said that as the number of cases stabilizes and eligibility for vaccination expands, the city may proceed with plans to open more companies – but the mask’s mandate should remain in effect.

“You can wear masks and still open businesses, you can wear masks and have more students at school,” said Adler, “You could wear masks and do all these things, and it is such a small price to pay to protect lives and people.”

Texas conditions are improving as new cases of COVID-19 and hospitalizations have dropped to levels never seen since October. Vaccinations are increasing with more than 11.5% of the population fully vaccinated – although black and Hispanic Texans face systemic medical injustices and are being vaccinated at disproportionately low rates. As of Monday, all Texans over the age of 16 will be eligible to register for a vaccine appointment.

But while the numbers are improving, Dr. Mark Escott, Travis County Interim Health Authority, testified in court on Friday that, last week, he is seeing the downward trend stabilize. And with the strains of the COVID-19 variant in the mix, Escott said the situation could get worse without public health intervention.

“It is clear that we have not yet defeated COVID-19,” said Escott. “And it is clear that if we are able to maintain these protections, it will give us time to vaccinate more people and, in the end, it will save lives.”

This is not the first time that Paxton has processed the COVID-19 restrictions. In December, Paxton successfully sued Austin and Travis County by local officials who implemented an evening curfew during the New Year’s weekend. However, the case was not decided until after the holiday, and the authorities applied a curfew.

Paxton also blocked the order from El Paso County saying that non-essential companies would close in November.

The outcome of the case may have implications for other cities and counties in Texas about how local governments can enforce their own public health determinations, even after the state has ordered its closure.

During Friday’s hearing, the discussion largely focused on the question: What are the powers of the local public health departments and how do the governor’s emergency powers affect them?

Lawyers for Austin and Travis said public health officials have the authority to implement health measures – such as masking mandates – outside the context of the pandemic and, therefore, should not be affected by the latest Texas order.

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

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

“I’m trying to understand why the person with the deadly virus must have more power than the person who tries to stay alive and not get the deadly virus,” said Livingston.

She pointed to previous examples of Abbott delegating authority in responding to the pandemic response to local governments – and said she understands why officials say they received mixed messages.

“It must be very confusing for local authorities to know when they are accused, in the governor’s mind, and they have a responsibility to react locally and take charge locally – and when they shouldn’t,” Livingston told state prosecutors. “I just needed you to know that I find this type of puzzle.”

Neelam Bohra contributed to this story.

Disclosure: Steve Adler is a former chairman of the Texas Tribune board and financially supports Tribune, a non-profit, non-partisan news organization that is financed in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in Tribune journalism. Find a complete list of them here.