• Talia Hill

Texas AG's office calls Austin's orders 'unlawful' and 'Orwellian'

The long-running feud between Austin's local leaders and Texas state government is not stopping for a global pandemic.

Texas Attorney General Ken Paxton's office wrote on May 12 that Austin and Travis County's public health orders to fight the coronavirus contain "unconstitutional and unlawful restrictions" that will confuse residents and could be met with litigation from the state's top law enforcement officer. They're urging officials in the capital to rewrite their orders.

On May 8, Austin Mayor Steve Adler and Travis County Judge Sarah Eckhardt extended their respective Stay Home-Work Safe orders to slow the spread of Covid-19, the disease caused by the coronavirus. Austin's order will run until May 30, while Travis County's order is in effect through June 15.


Residents are ordered to stay home through those dates to minimize social gatherings — with the exceptions for businesses that have always been allowed to remain open and the businesses that Gov. Greg Abbott's orders have gradually allowed to reopen over the past several weeks.

Residents should also wear face coverings, although there are no civil or criminal penalties for not wearing them. And Austin's order recommends that businesses such as dine-in restaurants should maintain an activity log of customers, noting where they sit and when they were served.

'Orwellian order raises privacy concerns' Ryan Vassar, the deputy attorney general for legal counsel with Paxton's office, wrote that the city's order restricts essential services that are allowed by the governor's order, such as law offices.

"Insofar as a local order restricts essential or reopened services, it conflicts with the governor's order and is, therefore, invalid," he wrote.

Vassar also said the city's recommendation to contact trace customers "force restaurants into submission by threatening to release the names of restaurants who do not comply."

"In addition to the threat of exposure, the city's Orwellian order raises privacy concerns and is also likely superseded by the governor's order," he added.

And Vassar said the local orders' provisions about face coverings and sheltering in place blur the line between what behavior is required and what is suggested.

"When communicating with the public about local orders in this ever-changing pandemic environment, it is important to convey the difference between a mandate and a recommendation," Vassar wrote. "Your orders and your public statements are confusing and misleading."

"We trust you will act quickly to correct mistakes like these to avoid further confusion and litigation challenging the county and city's unconstitutional and unlawful restrictions," he added.

'More people are going to get sick' In response to the letter, a city of Austin spokesperson said in an email that the city's intent was to adopt an order that complies with the governor's order "while continuing to encourage our citizens to stay home and work safe."

"We are confident that we accomplished just that," the spokesperson said.

Last week, Adler said in a virtual news conference the city would not have civil or criminal penalties for not wearing face coverings in order to comply with an order from the governor.

"But for all the reasons that the governor said in his press conference that we should all still wear our face masks... I can't bring myself to change the order to make it not mandatory anymore," Adler said. "The penalty for not wearing a face mask in our community now is that more people are going to get sick and some of those people will die. That ought to be penalty enough."

Eckhardt has separately said in the last couple of weeks that she worries that the state government is allowing commerce to resume too quickly, which will lead to more cases and deaths from Covid-19. Eckhardt is now mounting a bid to join the Legislature — on May 12 she officially resigned from her position to pursue a Texas Senate run.

As of the evening of May 12, there have been 2,171 confirmed cases of Covid-19 and 65 deaths linked to the virus in Austin and Travis County.


By Daniel Salazar

Austin Business Journal

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