The State of Texas v. the City of Austin: The Mask-Mandate Showdown

Update, 3/26/21: Travis County District Court Judge Lora Livingston ruled in favor of Austin-Travis County in a lawsuit brought by Texas Attorney General Ken Paxton. While the city’s mask rule will remain in place, we believe this case will track much like the previous legal fight between the state and the city, on the issue of Austin-area orders that restricted dining-in and drinking at restaurants through the new year. In that case, while the district court ruled in the City of Austin’s favor, the Supreme Court of Texas ultimately directed the lower court to block enforcement of the orders.

On March 10, 2020, Texas lifted nearly all coronavirus restrictions, including Gov. Greg Abbott’s statewide mask mandate and occupancy restrictions. Abbott’s order said that “no jurisdiction” can require a person to wear a mask in public if the area doesn’t meet a certain number hospitalizations for the coronavirus. Despite this, Austin and Travis County public health leaders stated that they would continue requiring residents to wear masks in public. Accordingly, the stage was set for a new legal showdown between the state and its capital city.

On March 11th, The State of Texas (through the Texas Attorney General Ken Paxton) filed its original petition and application for injunctive relief. The next day, the City of Austin filed its answer. While the State’s request for an immediate, temporary restraining order was rejected by the Court, the hearing for the injunction is set for tomorrow, March 26th.

We analyze the case to put it in recent, historical context, analyze who is going to win, and explain why.

The stand-off began with Texas Governor Greg Abbott’s Executive Order GA-34, which might be characterized as an “Anti-Mask Mandate.” The order requires that effective March 10, 2021, no jurisdiction within the state of Texas can require people to wear or otherwise mandate the wearing of face coverings. In effect, the order takes away most of local jurisdictions’ authority to impose mask-wearing restrictions, emphasizing instead that private businesses should make mask-wearing decisions on individual bases. Although the order allows local governments to enforce mask mandates in limited circumstances, such as in a region where coronavirus hospitalizations rise above 15% of bed capacity for seven consecutive days, it also explicitly states that “no jurisdiction” can impose jail time or other penalties for not wearing a mask.

Naturally, many privately-owned businesses may still require masks on their properties. Multiple popular Austin blogs have captured this reality by creating lists of Austin businesses still requiring masks. To learn about more state-wide businesses still requiring masks check out the Austin American Statesman.

An existing local order directly contradicts the governor’s order. Issued in 2020 and extended through at least April 15 of 2021, the local ordinance says that people ages 10 or older generally must wear a face covering outside their residences, unless eating, drinking, exercising outdoors, or driving alone or with people of their household. City regulations maintain that those who knowingly violate the rule could face a fine of up to $2,000.

This potential penalty notwithstanding, Austin’s Mayor, Steve Adler, has publicly acknowledged that enforcement of the city’s mask mandate will be limited. This questionable enforcement suggests that the local regulations here may be more about principle. Local officials’ recent public statements suggest that they believe their jurisdictions have a responsibility to continue upholding the existing local regulation in order to set the tone for the severity of COVID-19. To this effect, Adler told CNN that “It’s not the time to take risks. It’s not the time to do this two days before spring break starts.” Similarly, Judge Andy Brown told CNN that his “biggest concern” is that only 9% of the population in Travis County was vaccinated at the time that the governor issued the order.

In response to local officials’ statements, on March 10^th, Attorney General Paxton published a letter to Judge Brown and Mayor Adler, giving them “until 6:00 pm today to rescind any local mask mandates or business-operating restrictions, retract any related public statements, and come into full compliance with GA-34” or face a potential legal challenge. Paxton also tweeted how city or county leaders might be suffering from “oxygen deprivation from quintuple-masking” in thinking that the statewide mandate would not trump local law.

Punchy arguments aside, the state’s suit which was filed on March 11^th, alleges that the governor’s order “preempts more restrictive local emergency orders.” On this basis, the Attorney General seeks a temporary restraining order to prevent city and Travis County officials from enforcing any local face mask mandates.

 

Attorney General Paxton’s suggestion that the City of Austin and Travis County have lost similar legal battles against the state is not untrue. In January of this year, the Supreme Court of Texas blocked Austin-area orders that intended to curb the spread of COVID-19 during the New Year’s holiday. Although a district court judge had originally sided with Austin and Travis County, SCOTX nonetheless reversed course.

In that scenario, SCOTX’s Order did not provide reasoning, but the similar nature of the city-state clash in COVID policies suggests that the state’s highest court’s previous stance may not bode well for local authorities’ mask mandate position. Regardless of compelling policy stances taken by either party to the lawsuit, SCOTX will likely answer the jurisdictional question of whether local authorities can override a state requirement with a resounding no.

There is some irony to this possibility given that Texas prides itself in small government, but perhaps the state’s libertarian leanings are no match for the basic principles of federalism at play here. In any event, SCOTX will consider the state’s lawsuit on March 26th, so Texans should have an answer soon enough.

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