Court sides with Austin in mask mandate battle, denies injunction

AUSTIN, Texas - Judge Lora Livingston of the 261st District Civil Court has ruled that Austin and Travis County’s mask mandates can remain in place. 

Texas Attorney General Ken Paxton sued the municipalities for continuing to enforce local mask rules after Governor Greg Abbott rolled back the state’s mask mandate. 

Abbott said if COVID-19 hospitalizations rise above 15 percent of capacity in a Texas hospital region for seven consecutive days a local judge "may use COVID mitigation strategies in their county."

He said local COVID-19 mitigation strategies must allow businesses to operate at 50 percent minimum capacity, adding that "under no circumstance" is a county judge permitted to jail someone for not following COVID-related orders. He also forbid local officials from imposing penalties on individuals or businesses who fail to wear or require masks. 

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"I want to understand if there are any limits on personal freedom? I mean we don’t let people walk around in public without pants. We don’t let people run red lights, we have a lot of freedoms that are abridged some way or another in the public interest." Livingston said to Assistant Attorney General Todd Dickerson during the virtual hearing. 

Dickerson said Abbott’s decision "empowers the individual." 

Livingston asked, "Why would we as a community, why would the legislature authorize the governor to prevent local health authorities who have expertise in the areas of health and safety, who have a sworn duty to uphold the community’s health and safety, why would we give effect to a law that prevents the doctors from dictating who wears a mask and who doesn’t in a public place? And delegate [that responsibility] to an individual business owner on a whim who must not be required to be informed by any science, any health, by any trends, by any data by anything." 

Dickerson, who declined to be recorded, argued that "there’s no fair reading of the Texas Disaster Act that would give [local officials] the ability to basically veto Governor Abbott’s decision," He says the disaster act gives Abbott the sole power to handle state disasters. 

Sameer Birring, an attorney for the City of Austin says the power "is far more limited than the state is admitting here." 

Dickerson said that the county and city attorneys’ interpretation of the act and other codes cited would "effectively give thousands of local officials, including unelected ones like [Interim Health Authority Dr. Mark Escott] veto power over the state's response to a statewide emergency." 

Travis County Judge Andy Brown released the following statement regarding today’s court ruling: 

"Travis County remains committed to following the science and the advice of our health experts. Today’s court ruling allowing the Health Authority’s rules to remain in place and keep the mask requirements for businesses puts the health and safety of our public above all else during this pandemic."

"For however long the city’s mask mandate is in effect, our community is safer because the message is clear that masking works and is effective. Just the court’s delayed ruling, being in force during this past spring break, has been a victory for doctors and data over politics," said Austin Mayor Steve Adler in a press release Friday.

"Today’s court ruling is not what’s most important. We shouldn’t wear masks because of laws or orders, but because they work," continued Adler. "Our community has control and can and should continue to make the decision to wear and require masks because it’s the right thing to do. This push to continue masking has never been about laws and enforcement, it’s about communicating a culture of common decency and concern for one another, our businesses, and our community-at-large."

Texas Attorney General Ken Paxton's office officially filed suit in district court on March 11 to ask for a temporary restraining order on the local mask rule until a hearing is held. 

Paxton originally gave the Austin mayor, Travis County judge, and local health authority until 6 p.m. March 10 to rescind the local mask mandate or face off with the state in court. The order was not rescinded and Paxton followed through with his threat. 

"We will continue to follow the doctors and the data that urge individuals and businesses alike to continue to mask until everyone is vaccinated because it’s the right thing to do," said Adler. 

"The pandemic mortality rate for Austin is less than half that of the State average (and national average)," he continued. "We are enjoying that success because our community will do what it takes to protect lives and to best recover, and that means continued masking. Please continue to #MaskUpATX; we are so close to enjoying a return to more normal lives."

Local officials anticipate Paxton’s office will file an appeal.