Texas Attorney General Warns Some Austin-Travis County COVID-19 Orders Are 'Unlawful'

May 12, 2020

Texas Attorney General Ken Paxton sent a letter to Austin Mayor Steve Adler and outgoing Travis County Judge Sarah Eckhardt on Tuesday saying some of the requirements in their local public health orders are unlawful and “likely to confuse residents.”

Paxton sent similar letters to leaders in Dallas County, Bexar County and the City of San Antonio.

The letters come four days after Austin and Travis County extended and updated their stay-at-home guidelines following Gov. Greg Abbott’s recent order allowing certain businesses, like salons and barbershops, to open across the state with certain restrictions. 

“Unfortunately, a few Texas counties and cities seem to have confused recommendations with requirements and have grossly exceeded state law to impose their own will on private citizens and businesses,” Paxton said in a statement. “These letters seek to avoid any public confusion as we reopen the state. I trust that local officials will act quickly to correct any orders that unlawfully conflict with Texas law and Governor Abbott’s Executive Orders.”  

The letter to Austin and Travis County leaders says their orders place unconstitutional demands on houses of worship, put unnecessary restrictions on essential services and feature unenforceable requirements such as wearing a mask. 

Ryan Vassar, the deputy attorney general for legal counsel, wrote the letter. He calls one aspect of the local orders — the suggestion that restaurants keep logs of customers who dine there to help with potential contact tracing — an “Orwellian order” that “raises privacy concerns.”

The city and county’s orders say people over the age of 6 are to wear face coverings in public, a move Vassar calls out for being unenforceable. The city and county had previously required face coverings, but Abbott later said Texans will not face penalties for not wearing them.

“The governor’s order recognizes that Texans will act responsibly and make smart decisions to protect themselves and their families,” the letter says. “In contrast, your orders purport to strip Texans of their agency.”

In an interview with KUT on Monday, Adler said he recognizes Texas cities are not able to enforce face coverings with criminal or civil penalties. He said even when it was an enforceable requirement in Austin and Travis County, local law enforcement wasn’t “arresting people or fining people anyhow.”

“But just the fact that it was mandatory, even though we weren’t doing that, sent a very clear message that everybody should be wearing face coverings,” Adler said. “It’s clear that people should.”

Vassar goes on to write that the local leaders’ orders and public statements have been “confusing and misleading” for not differentiating between recommendations and mandates.

“To avoid misleading your constituents, we encourage you to clarify those portions of your orders that could be construed as requirements, when, in fact, if they were requirements, they would be invalid and unenforceable,” Vassar wrote.

Adler released a statement Tuesday evening in response to Paxton’s letter.

“Up to this point, we have avoided the naked politicization of the virus crisis,” he said. “I will not follow the AG down that road. The City’s Order complements, incorporates, and does not conflict with the Governor’s Order. We will continue working to keep our community safe to the fullest extent allowed by law.”

You can read the attorney general’s letter below: 

Got a tip? Email Marisa Charpentier at mcharpentier@kut.org. Follow her on Twitter @marisacharp.

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