Late last week, Austin and Travis County secured a temporary victory when a district judge denied the state’s attempt to block the localities’ face-covering requirements, allowing them to continue enforcing the rules.
Texas Attorney General Ken Paxton followed through on his threat earlier this month to sue local officials who had publicly defied the state’s moratorium on mask mandates, saying they “must not be thinking clearly.” But in her Friday ruling, state District Judge Lora Livingston ruled that the state hadn’t persuaded her that the local ordinances should be struck down.
Paxton is expected to appeal the decision and the case is still ongoing until Livingston issues a final ruling, but city and county leaders celebrated the news, saying every additional day under the mandate makes residents safer.
Austin Mayor Steve Adler called it “a victory for doctors and data over politics.”
“We shouldn’t wear masks because of laws or orders, but because they work,” Adler said in a statement. “Our community has control and can and should continue to make the decision to wear and require masks because it’s the right thing to do.”
Austin, the state capital, is a Democratic stronghold, and this isn’t the first time Paxton has tangled in court with one of Texas’s liberal enclaves over health restrictions. In December, the attorney general successfully sued Austin-area officials, striking down a measure that would have restricted indoor dining and drinking during New Year’s weekend. Paxton was also involved in the effort to overturn an El Paso order temporarily shutting down nonessential businesses in October.
Although there has been some intraparty conflict — in Texas and elsewhere — the debate over who has the authority to set local health orders cleaves along familiar political lines. Abbott and Paxton, both Republicans, lead a GOP-dominated state government that in the past year has pushed for fewer restrictions and has delayed enacting them, putting them at odds with the leaders of the state’s largest cities, most of whom are Democrats.
In the summer, when coronavirus infections and hospitalizations surged after the state began reopening, a chorus of city and county leaders urged Abbott to be more cautious. He eventually acquiesced, allowing them to enact their own regulations — a latitude his executive order this month sought to revoke.
This particular iteration of the local control feud comes at a complex time in the pandemic. For weeks, the number of newly reported virus cases had been falling from record highs, but that trend has slowed and lately shows signs of reversing, with levels of new infections ticking back up across the country, according to data tracked and analyzed by The Washington Post.
In Texas, the picture is more complicated. The virus has killed more than 47,000 people there, more than anywhere else but California and New York. Case levels are still falling, but the number of Texans who have been vaccinated is low. Just 12 percent of the state’s population is fully inoculated, among the lowest of any U.S. state, according to Post tracking.
Health experts criticized Abbott’s decision to lift the statewide mask mandate and said he was acting too quickly. President Biden called it “Neanderthal thinking.” Last week, lawyers for the state argued that Abbott’s emergency powers supersede local ordinances.
But Livingston, the judge, questioned that logic and pointed to past instances when Abbott had deferred to local governments, according to an account of the proceedings published in the Texas Tribune.
“It’s got to be pretty confusing for local officials to know when they are charged, in the governor’s mind, and have the responsibility to react locally and take charge locally — and when they shouldn’t,” Livingston said, according to the Tribune. “I just needed to let you know that I find that kind of a puzzle.”
The outcome of the court case could have implications for other cities and counties looking to preserve mask mandates. Houston, San Antonio, Dallas and El Paso have all already required masks in city buildings, and Austin may provide them a template to expand their orders should the state’s lawsuit fail.
“We have to do what we are legally allowed to do to get people to wear masks,” Dallas Mayor Eric Johnson said in a tweet announcing the mask mandate for municipal buildings. “The pandemic is not over.”
Jacqueline Dupree contributed to this report.