Supreme Court of Texas to Austin mayor: You don't get to make your own rules during the pandemic

The long New Year holiday weekend is no excuse for stricter restrictions to be put in place by Austin Mayor Steve Adler during a spike in coronavirus cases. Adler took it upon himself to clamp down on bars and restaurants in the last minute order earlier this week in the name of coronavirus mitigation. The Supreme Court of Texas sided with Governor Abbott and Texas Attorney General Ken Paxton in a lawsuit asking that the restrictions be halted.

This is an update to a post I wrote on Thursday. Mayor Adler imposed new restrictions limiting indoor and outdoor dine-in food and beverage services after 10:30 p.m. to 6 a.m. These restrictions were in effect from Dec. 31 through Jan. 3. The options of takeout and curbside pickup were still allowed. The reasoning used by the mayor and the Travis County Judge Andy Brown was that coronavirus cases are spiking in Travis County and in order to stop the spread, Adler and Brown decided to impose restrictions that went farther than those already in place from Governor Abbott. When push comes to shove, the governor’s orders override arbitrary orders put in place by a local public official.

Austin Mayor Steve Adler and Travis County Judge Andy Brown announced the orders on Dec. 29 in a bid to slow spiraling coronavirus infections and hospitalizations going into New Year’s Eve. They were quickly challenged by Gov. Greg Abbott and by Paxton, who described the orders as “needlessly oppressive.” Both officials exhorted Texas restaurants to remain open in defiance of the orders, which were upheld by a district judge Thursday. In a further blow to the state, Texas’ Third Court of Appeals swiftly rejected an appeal later that night.

Friday’s Supreme Court order, however, directs the lower court to block enforcement of the orders, pending any further appeal.

The state’s Supreme Court ruling came just three hours before the second night of the shortened hours went into effect. The ruling came without explanation and after two lower courts denied the request by Paxton on Thursday. State District Judge Amy Clark Meachum (a Democrat) denied his request for an injunction blocking the curfew and then Paxton’s request that the 3rd Court of Appeals overrule Meachum was denied late Thursday. The 3rd Court of Appeals is based in Austin. Democrats hold a 5-1 majority. The Supreme Court of Texas is all Republican.

Paxton posted a celebratory tweet about the victory. Governor Abbott updated a tweet from New Year’s Eve with the news.

The Texas Restaurant Association thanked Abbott and Paxton for speaking up for restaurant business owners and pointed out that if patrons don’t use establishments with restrictions in place, as the governor has mandated in Texas, they will use unregulated spaces. “The public is exhausted and confused, and it’s past time that our leaders stop looking for scapegoats and rally around those prevention strategies that we know work like wearing a mask, social distancing, and avoiding unregulated gatherings.”

Travis County Judge Brown (not a judicial position, but the county CEO) expressed disappointment in the ruling. He said, “it limits our ability to slow the spread of COVID-19 in our community.” Dr. Mark Escott agreed with the local restrictions.

“I continue to encourage everyone in Travis County to celebrate and eat safely at home until our overall COVID-19 numbers have decreased. I also would ask everyone to consider supporting local restaurants by ordering food for takeout as I did with my family last night,” Brown said.

Dr. Mark Escott, interim health authority for Austin and Travis County, testified that the dine-in curfew was meant to limit risky behavior amid a surge that has seen hospital admissions jump 127%, ICU occupancy rise 94% and ventilator use rise 98% since Dec. 1.

“Unfortunately, everything is rising,” he said.

Bars and restaurants are still under capacity restrictions. No business is under complete freedom with 100% of normal operating capacity in place in Texas. Counties are ordered to go back down to lower capacities when coronavirus positivity numbers rise. There are rules in place to allow people to dine in restaurants, for example, while adhering to social distancing and other mandates from the state. County fire marshals monitor businesses. To punish business owners and their employees as a last-minute impulse in the name of halting the spread of coronavirus cases was poorly reasoned over a holiday weekend.