The Texas Attorney General’s Office has fired a shot at the City of Austin and Travis County over what it claims is an unconstitutional overreach in issuing stay-at-home orders that are more strict than Governor Greg Abbott’s policies.
In a May 12 release, Attorney General Ken Paxton says social distancing orders from Austin and Travis County — along with those from San Antonio, Bexar County, and Dallas County — “have grossly exceeded state law to impose their own will on private citizens and businesses.”
The New York Times notes that when Abbott “ended his stay-at-home order and set the stage for the state’s partial reopening this month, he angered many local officials by contending that his reopening policies supersede any conflicting orders issued by cities or counties.”
Referring to Austin’s directive about contact tracing at restaurants, Deputy Attorney General Ryan Vassar wrote May 12 that the “Orwellian order raises privacy concerns” and likely is eclipsed by the less restrictive governor’s order. The city’s order encourages restaurants to log names, contact information, and other data about dine-in customers.
“Although the order only seems to recommend for these restaurants to track their employees and customers, it forces restaurants into submission by threatening to release the names of restaurants who do not comply,” Vassar’s letter says.
The Attorney General’s Office sent similarly worded letters to government officials in San Antonio, Bexar County, and Dallas County. All of the letters criticize what Vassar called “unconstitutional and unlawful restrictions.”
Vassar’s letter to Austin and Travis County leaders also takes aim at how their orders clamp down on nonessential travel, public gatherings, in-person religious services, and wearing face masks.
Vassar also argues that their orders’ attempts to restrict “essential” in-person religious services “unlawfully trample religious freedom.”
Pertaining to masks, Vassar maintained that the city and county can’t impose civil or criminal penalties for failing to wear a mask in public. The Austin and Travis County orders mandate that anyone over age 6 to wear some type of mask outside their homes. The state’s order encourages, but does not require, wearing masks in public.
“Although your orders ‘require’ individuals to wear masks when they leave their home, they are free to choose whether to wear one or not,” Vassar wrote.
During a virtual news conference last week, Mayor Steve Adler said that in an effort to comply with the governor’s orders, the city wouldn’t slap mask violators with civil or criminal penalties. Adler added, however, that he wouldn’t rescind the mask mandate.
Vassar urged all of the letter recipients to “fix” their stay-at-home orders, alleging they’re unlawful and insisting they could prompt legal challenges. The orders lack clarity about the difference between a mandate and a recommendation, Vassar said.
“Your orders and your public statements are confusing and misleading,” Vassar wrote. “A recommendation, by definition, is not a requirement. Yet your orders seem to confuse the two.”
On May 8, Adler extended the city’s stay-at-home order through May 30 and Travis County Judge Sarah Eckhardt extended the county’s order through June 15. Eckhardt resigned May 12 to run for the Texas Senate seat being vacated by Kirk Watson, an Austin Democrat.
A City of Austin spokesperson says the city intended to adopt an order that complies with the governor’s various pandemic orders “while continuing to encourage our citizens to stay home and work safe. We are confident that we accomplished just that.”
At a May 12 news conference, San Antonio Mayor Ron Nirenberg and Bexar County Judge Nelson Wolff accused Paxton’s office of carrying out a political stunt.
“The fact is, our orders have been in compliance with the governor from day one,” Nirenberg said. “It doesn’t stop the AG from seeking a cheap political headline.”