Judge allows Austin mask mandate to continue, rejecting Texas AG Ken Paxton's arguments

Chuck Lindell
Austin American-Statesman

Rejecting arguments by Texas Attorney General Ken Paxton, a Travis County state judge declined Friday to block Austin and Travis County pandemic orders requiring employees and customers to wear a face covering in local businesses.

State District Judge Lora Livingston announced her ruling in a short order Friday afternoon after a three-hour hearing held remotely via Zoom.

"I cannot find that (the state) met its burden to demonstrate the right to the relief it seeks," Livingston said, adding that a signed order will follow with additional details.

Paxton is expected to quickly appeal the ruling, which denied his request for an injunction blocking the mask mandates.

Watch replay:Austin mask mandate hearing held Friday

Lawyers for Paxton, who sued to overturn the mask mandates as illegal and invalid, argued that Gov. Greg Abbott's pandemic-related executive orders trump local requirements under powers granted by the Texas Disaster Act.

"The TDA clearly makes the governor, not local officials, ultimately responsible for guiding the state through a statewide disaster," Todd Dickerson, assistant attorney general, told Livingston during the hearing.

Mark and Charlene Carpenter exit REI after shopping at the sporting goods store on North Lamar Boulevard on Friday. A local judge allowed Austin's mask mandate for businesses to stay in effect Friday, rejecting a bid by Texas Attorney General Ken Paxton to block it.

The disaster act also gives Abbott's emergency orders the "force and effect of law" that overrules conflicting local requirements, Dickerson said, adding that Abbott's executive order of March 2 explicitly barred cities and counties from requiring Texans to wear a mask in public.

"State law controls over local ordinances," he said.

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But lawyers for Austin and Travis County said the mask mandates, which require businesses to ensure that customers and employees cover their faces while inside, are allowed under a different state law that gives local health officials the power to issue rules that protect public health.

"The Health and Safety Code is a very broad grant of authority to protect the local population," Leslie Dippel with the Travis County attorney's office told the judge, adding that nothing in the Texas Disaster Act overturns or overrules that power.

BookPeople employee Elijah Blumofe works at the door to the independent book store, which requires masks, in downtown Austin on Friday.

The state called no witnesses, and Austin and Travis County called one — Dr. Mark Escott, the interim health authority for both jurisdictions.

Saving lives

Escott said wearing a mask in public, a local requirement since the summer, is the most important strategy in reducing the spread of COVID-19. Travis County has a far lower death rate than the statewide average and other large counties, which he attributed in part to the local mask policy.

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Travis County has a rate of 73.2 COVID-19 deaths per 100,000, compared with 160 deaths per 100,000 residents statewide, equating to 1,108 saved lives locally over the past year, Escott testified.

"I think that's a testament to the efficacy of what we're doing here," he said.

Escott said he was concerned that lifting the mask mandate could lead to an unnecessary third surge in local COVID-19 cases, adding that the local fully vaccinated rate of 12% of adults over 16, and 10% of the total population, falls far short of the 70%-85% needed to reach herd immunity.

John Runde, of Bristol, Tenn., shops Friday at Waterloo Records. The record store requires customers to wear masks, and it has put masks on a cardboard cutout of Jack and Meg White of the rock band the White Stripes.

And while coronavirus-related hospital admissions and deaths have dropped sharply, those declines have hit a plateau, he said: "Basically, we've hit a wall in terms of our decline in cases."

"It's clear that we haven't beaten COVID-19 yet, and it's clear that if we are able to maintain those protections, it's going to buy us time to get people vaccinated, and ultimately it's going to save lives," Escott said.

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'Individual choice'

At the close of the hearing, Livingston said she was puzzled that Abbott's latest executive order prohibited local officials from enforcing mask mandates but allowed individual businesses to require customers to wear a mask — or enter without one.

That would seem to give business owners, who can make those decisions without any scientific basis at all, more power over people's health than local health authorities who are medical experts, Livingston said.

"What makes sense about that?" the judge asked.

Livingston then shifted gears. "What are the state interests in preventing a jurisdiction from trying to keep their people safe?" she asked Dickerson.

"In preserving the freedom of individual choice," he replied.

Livingston found the answer lacking, noting that individual choice would seem to allow infected people to "spew and infect others" by declining to wear a mask. "Why should a person with a deadly virus have more power than the person trying not to catch the deadly virus?" she asked.

Travis County Judge Andy Brown praised Friday's ruling, saying it "puts the health and safety of our public above all else during this pandemic."

"Travis County remains committed to following the science and the advice of our health experts," he said.

Austin Public Health officials encouraged people to continue wearing face coverings in public, saying Livingston's ruling recognized the importance of local rules in promoting health, keeping essential workers safe and helping businesses thrive.