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Paxton sues Austin and Travis County over its mask mandate

Completely expected.

Best mugshot ever

Texas Attorney General Ken Paxton is suing Travis County and Austin officials in an effort to force them to rescind their local mask orders, he announced Thursday.

“I told Travis County & The City of Austin to comply with state mask law,” Paxton tweeted. “They blew me off. So, once again, I’m dragging them to court.”

Texas on Wednesday lifted nearly all coronavirus restrictions, including Gov. Greg Abbott’s statewide mask mandate and occupancy restrictions. Abbott’s order said that “no jurisdiction” can require a person to wear a mask in public if the area doesn’t meet a certain number hospitalizations for the coronavirus. But Austin and Travis County health officials have said they will continue to enforce the safety protocols, setting the stage for yet another fight over pandemic response between state and local officials.

“[Travis County] Judge Brown and I will fight to defend and enforce our local health officials’ rules for as long as possible using all the power and tools available to us,” Austin Mayor Steve Adler said Thursday in a statement. “We promised to be guided by the doctors, science and data as concerns the pandemic and we do everything we can to keep that promise.”

[…]

Travis County Judge Andy Brown, who presides over the county government, said the authority to impose the local mask mandate comes from the county health authority, not from Brown’s emergency powers. Brown told The Texas Tribune on Wednesday that means the order should hold up in court.

“I listen to doctors, not to politicians like our attorney general,” Brown said.

As noted, Travis County and Austin extended their mandates on Wednesday, then Paxton sent them a letter saying basically “take that back or I’ll sue”. When they didn’t, he did. And look, no one holds Ken Paxton in greater contempt than I do, but he’s going to win this case. He may have to appeal it up a level or two to get there, but there’s just no way this story ends with the locals winning. I get the urge to defy the dumb order from Greg Abbott and to take a stand, but you gotta have a strategy and some reasonable expectation of achieving the outcome you want. This is not going to help.

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17 Comments

  1. Joel says:

    Adler explained the reasoning: back in December (? whenever it was ?) when this happened, they kept the mask order in place while the lawsuit was going through the courts, and that period “made a difference.” they are trying to buy time for more vaccinations. even if it is only a few days or a week or two, that represents a non-zero number of lives saved.

    Besides that, short of seceding from Texas, I’m not sure what you would have them do.

  2. Jen says:

    Perhaps they could argue, since Abbott has said a statewide response is no longer needed, that the statewide state of emergency which allowed him to dictate policy no longer applies. So it is now up to local officials to determine health policies.

  3. Lobo says:

    NO POWER, NO WATER, AND NOW NO MASKS

    In the interest of having a merits debate, let me suggest that are good reasons to disagree with Kuff’s fatalistic assessment and the proposition of futility. And I would much rather assume that the local leaders in Austin *do* have a plan, and aren’t acting out of mere emotion-driven defiance.

    First, even assuming the locals’ decision not to bow to Paxton’s will is ultimately doomed, it might still be worthwhile to take a stance on what is right. That’s a core element of the logic of social movement as instruments of change, including civil rights marches and peaceful civil disobedience, like walking over a bridge to meet the clubs of the police on the opposite side or sitting at a lunch counter declared to be off-limits for a defined category of would-be customers. Granted, we are talking here of people in the (local) government, i.e., in political actors that are already in power, but still: Just because you may lose doesn’t mean shouldn’t take on your opponent and put up nonviolent resistances, such as — here — legal resistance. And it’s not life-or-death for the leaders of the City of Austin or Travis County (even it is for some of the affected residents). Presumably they have capable legal departments.

    Even if you can reasonably expect to be overruled by higher authority (the SCOTX), so be it. Let it be seen and known to all *who* is responsible for putting Texans at risk. In the end, we shall (hopefully) overcome.

    Second, Austin’s and Travis County’s position on mandated masking is not necessarily doomed because good lawyers are capable of making plausible non-frivolous legal arguments, and because – in order to get what he wants – the AG has to convince a court to issue an order against the City and County defendants. As we have seen previously, the lower courts don’t operate in the same knee-jerk fashion (or mental equivalent thereof) as the predictable court of of last resort. They actually hear testimony and consider the evidence. The SCOTX, alas, favors evidence-free matter-of-law so-we-say dispositions.

    As already intimated by the prior commentator above, Paxton may not get his way instanter. A TRO grant or denial cannot be appealed, so what we might see is a mandamus to the 3rd COA or the SCOTX or both at the same time, and perhaps a few days delay in a resolution of those cases.

    In theory, the burden is much higher to show an abuse of discretion regarding a denial of extraordinary temporary relief (TRO) in a mandamus proceeding. And what’s the urgency given that the timing of Abbott’s 100% order was itself arbitrary, i.e., not imposed by exigent emergency conditions. The same issue raised in the TRO context will again be before the trial court in a temporary injunction hearing.

    While the appellate court considers the mandamus petition, the local order stays in effect (unless a superseding temporary order is issued by the appellate court). This is not to say that the SCOTX, which usually gives Paxton what he wants, will not quickly squash the locals once more, but why take it for granted when there is a chance that it will not happen, or not immediately? – And if it does, let the media report it and let it be known whose is throwing the monkey wrenches to thwart the workings of local government.

    If the Supremes do as Paxton tells them, and use the occasion to bless Abbott re-appointee Jeff Alley’s MASTER-SERVANT jurisprudence, let them take the heat for it.

    “Just as a servant cannot have two masters, the public cannot have two sets of rules to live by.”

    THE MERITS OF THE LEGAL ARGUMENTS

    Paxton so far only posted the threat-to-sue letter on his website. I haven’t seen his petition and TRO application (except for a screenshot of the caption and the Abbott-our-sole-master quote above), so I won’t ruminate on the legal arguments.

    Let me just suggest in the interim that there may be good legal grounds for the City of Austin as home-rule city to defend its authority to enact local public health measures, whereas the Governor’s claim to preemption is based exclusively on his emergency powers under the Disaster Act (and his ability to override the County judges’ authority as emergency managers under that statute). The City apparently doesn’t rely on the Disaster Act.

    If anyone has a link for the filings, please post them. Although Travis County is run by Dems, they don’t make court filings freely available. – Shame on them!

  4. Bill Daniels says:

    In my first few forays out as a now free breather, including at the grocery store, it looked like most, but not all, were still wearing their muzzles. I saw no conflicts between the muzzled, the partially muzzled, and the free breathers. Everybody was respectful of each other, and I think that’s a good thing.

    Live your lives, people. If you want to wear the muzzle, wear it! If you don’t, don’t. This isn’t hard at all.

    I’m just enjoying the folks in Austin and elsewhere getting a little taste of what the left does to the right elsewhere. Paxton is our very own NY AG Letitia James, without the neck bobbing. The right needs to be just as prolific in using lawfare as the left, until maybe both sides can come to their senses and just agree to stop using lawfare. Doubtful that will happen, but one can hope.

  5. Bill Daniels says:

    ” Although Travis County is run by Dems, they don’t make court filings freely available. – Shame on them!”

    LOL, Wolf…..you’re a true socialist, you think everything should be “free” from the government, all your needs and wants met, cared for by the state. You should let the folks in Austin know that they are failing to meet your expectations.

  6. Bill Daniels says:

    I can’t remember now, but in another thread, another poster commented on the hypocrisy of Abbot ending the mask mandate, while keeping the governor’s mansion tours stopped. I’m happy to report that anyone who cares to, can indeed tour the mansion. The tours restarted the same exact day the mandate was rescinded, March 10. So Abbott is inviting unmasked people into his own personal residence for tours.

    “Tour Information

    Free guided tours of the Texas Governor’s Mansion will resume on Wednesday, March 10, 2021 and will be available on the days and times listed below on a first-come, first-served basis.

    For security purposes, reservations must be made at least one week in advance.
    Walk-up tours are not available.
    Tours last approximately 20 minutes and are subject to change.
    Masks are strongly encouraged, and social distancing guidelines will be implemented to ensure the safety of all visitors.”

    https://gov.texas.gov/first-lady/tours

  7. Lobo says:

    OFFICIAL RIPP-OFF

    Bill: If it makes you happy to call me a Socialist, so be it. I have been called worse (fascist, for example, from the other end of the spectrum).

    On the merits, all this stuff is public record, meaning the public is entitled to *view* it, which does not equate to an entitlement to hard/paper copies. The latter involves a production cost, or coin or paycard self-copying using an on-site machine provided by the county or a vendor (that’s how it used to be and may still be in some smaller and more backward counties). So much for your free handout argument.

    Other large counties (Harris, Fort Bend, Dallas, for example) allow remote electronic access, which — mind you — involves interaction with their database via the web-site interface and therefore does not even cause a labor cost on the server side. The marginal cost for the server to respond to a web-user’s request for a docket or PDF document is infinitesimal. And the infrastructure must exist in any event because it’s used for active court docket management. The case files are now electronic. Also note that the Supreme Court and most appellate courts make all filings available on their websites, and also provide useful search functionality.

    Credit should be given where credit is due.

    NOT-SO HOLY CASH COWS

    Some counties in Texas are restricting or denying free online access to “extort” money from the public seeking access to public records. Strangely enough that’s been the practice by both Dem-run counties (Travis) and GOP-run counties (Tarrant). It’s an abuse of monopoly power and a ripoff, and it’s a violation of the principles of transparency to impose a paywall to access public information.

    Shame where shame is due.

    Similar criticisms have long been made about the federal PACER system, which is also run as a cash cow – a gigantic nationwide herd of cash cows, if you will. Hopefully, that will change under the Biden administration (not sure the current status of the litigation is on that front).

  8. Bill Daniels says:

    No worries, Wolf. I have a very good friend, a social worker, I’ve been friends with for decades, who probably is as leftist as you are, maybe even more. Removing politics from the equation, he’s a good guy, and I am sure you are, too.

  9. robert says:

    Bill, I kinda wish you’d wear a “muzzle”…Covid or not.

  10. Lobo says:

    TRO Denied, Chuck Lindell at Austin American-Statesman has more on his twitter feed.

    Also, I have since found a free copy of the Original Petition. Kudos to Courthouse News for posting it:

    STATE OF TEXAS’S VERIFIED ORIGINAL PETITION AND APPLICATIONS FOR
    TEMPORARY AND PERMANENT INJUNCTIVE RELIEF, filed March 11, 2021.
    https://www.courthousenews.com/wp-content/uploads/2021/03/texas-masks.pdf

    Legal case info: State of Texas v. City of Austin, et al, Cause No. D-1-GN-21-001046 in the 98th District Court of Travis County (Lora Livingston presided).

    NB: That’s *not* a U.S. District Court. One of the media outlets got it wrong.

  11. Jason Hochman says:

    I don’t know why so much hand wringing over Texas ending all of the restrictions. Other states–Connecticut, Massachusetts, Mississippi, Oklahoma are all ending or phasing out their restrictions and mask rules. All of Biden’s voters are probably turning over in their graves.

  12. Lobo says:

    DEMASKING THE ORAL CONDOM BAN

    Re: Texas ending all of the restrictions … [and] … Biden voters in their graves.

    Hochman: You raise an interesting point that is arguably worth further exploration. Let me offer the following by way of non-exhaustive analysis:

    PREMISE A: METRO AREAS ARE BETTER FOR VIRUS SPREAD

    Metropolitan areas are dense (population/unit of space), ergo much greater opportunity for COVID spread because much larger incidence of P2P contact, and much greater incidence of people coming into contact with people they do not have an ongoing relationships with (such as at restaurants and bars, and mass sports or entertainment events). So, if 2 out of 100 are infected, and you come into contact with 100 in a week, you can do the math and compute your exposure odds.

    Under normalcy conditions, there is much more *promiscuity* in social interaction in densely populated urban areas, to borrow a concept for intimate P2P contact and models of STD transmission. You can measured it as mean number of distinct individuals any one person encounters in the same time interval, say in a week. Higher in urban areas compared to rural.

    Now, also consider that you don’t have to engage in sexual contact to catch COVID, so the risk of spread is much higher because the disease can be acquired without the exchange of bodily fluids as we know it. Airborne droplets alone will suffice. Hence, the prescription of social distancing as a countermeasure short of no contact at all (staying at home, or abstention from intercourse in our STD analogy).

    PREMISE B: METRO AREAS LEAN DEMOCRATIC

    Next, consider that metropolitan areas disproportionately vote Democratic. Kuff has over the weeks adduced plenty of data on that.

    PREMISE C: GOP HAS DITCHED ITS MORAL COMPASS AND WILL DO WHATEVER

    So why wouldn’t it make sense for Republicans to promote the spread of the communicable disease by removing the mouth “condoms” (or “muzzles” to use Bill’s preferred lingo) that would otherwise provide physical barrier protection against infection?

    Analogously, why wouldn’t they eliminate curbs on crowding (in the form of premises occupancy restrictions) that cut down on promiscuity in social contacts?

    Do you see the hard-nosed political logic here? Promiscuity and discontinuation of the barrier-method of protection is good for business: good for the GOP’s political business.

    Not only do Republicans clamor for easing restriction on business, thus making Abbott’s 100%-no-mask order popular with their own electoral constituency, the adverse health consequences will disproportionately be borne by people who tend to vote Democratic.

    COVID CASUALTIES: ELECTORAL IMPLICATIONS

    And the dead Biden voters that you grace with your comments will reduce the total tally in statewide races because in statewide race every vote counts regardless how much gerrymandered the district and how lopsided the D vs R vote split may be in races for local offices. While a dead Biden supporter may not affect the calculus for local races because the Dem candidates will win anyway, the analysis is not the same in the big statewide scheme of things.

    Bottom line: In statewide races, every dead Biden voters count. Every dead Biden voter is one vote less for the opposition and will help the GOP maintain their grip on power at the state level.

    So why wouldn’t AG Paxton file a lawsuit to prevent local officials from fighting the virus to protect their disproportionately Democratic constituents? Why wouldn’t he file suit to promote the spread of COVID in metropolitan areas?

    Please don’t call *me* cynical.

    Just look at all the voter suppression legislation being filed to target Harris County (which is home to the largest number of Biden/Dems voters susceptible to suppression), and remember the precursor voter-suppression lawsuits filed by the very same AG last year.

  13. Bill Daniels says:

    Wolf,

    Assuming that the elimination of the muzzle requirement is targeted to kill Democrat big city voters, why is it that the Republicans are so gosh darned opposed to abortion? If killing off Democrat voters is the goal, then the Republicans should enthusiastically join with me in SUPPORTING and ENCOURAGING abortion. What better way to win a war of attrition than,a mass killing off of the kids of mostly liberal mothers?

    There’s some cognitive dissonance here I can’t get over, the same kind of cognitive dissonance that happens when you complain that demanding ID and signature matching for voting is bad, but in the next breath, tell us you want to demand ID for peer to peer gun sales. You decry voter suppression, and in the next breath enthusiastically promote laws that would suppress the rights of non White people to purchase and own guns. It’s almost like you’re good with racism, except when you need the votes of non White people.

    How are blacks and Mexicans expected to pass background checks when everyone knows they are too poor and stupid to get the ID required FOR a background check?

  14. Manny says:

    Bill, the fascists’ women, are the real killers, with their birth control and refusal to have Neantheral men’s children. They happen to call themselves “Christians.” I guess they pay lip service to the white males while refusing to bear their children.

  15. Bill Daniels says:

    Manny,

    There’s a lip service joke about Kamala, Sandy Cortez and Ilhan Said el Nursi, but I’m not going to make it. Having said that, I’ll go with my alternate, “jihadist in the streets, submissive in the sheets.”

  16. Lobo says:

    WHAT HAPPENED AT THE HEARING, AND WHAT’S THE EFFECT?

    Regarding the underlying topic, here is a correction/update:

    District Judge Lora Livingston *declined to grant* Paxton’s TRO request, rather than *denying* it expressly. This seems like a fine semantic distinction, but as of this morning there was no signed order noted on the docket for State of Texas vs. City of Austin et al, and that’s significant. To their credit, the nuance didn’t escape the Trib or Chuck Lindall.

    It’s harder to challenge a trial court ruling (by mandamus, in the court of appeals) that hasn’t been reduced to a written order. The order complained of must normally be included in the mandamus record. So how would the AG do that in this case? And it’s also not easy to challenge a trial judge for failure to rule (unless your judge’s name is Ursula Hall, and she kept you waiting for a ruling for many months). Here, the matter of temporary injunctive relief is to be taken up in 2 weeks.

    The effect of the “non-ruling” is that the Austin and Travis County COVID containment orders remain in place despite the AG’s claim that our one and only Master, Greg Abbott, lawfully preempted them through his recent 100% Reopening Order. While the AG claims these local orders are legally invalid as a result, and seeks a declaratory judgment to that effect, no judge has yet formally agreed with him. So there. So much for Paxton’s cockiness in his press release and threat-to-sue letter.

    Some media characterize the interim handling of the AG’s bid for instanter relief as the judge siding with the local officials. See, e.g., Jordan Williams, Judge sides with Austin in Texas mask lawsuit, THE HILL (March 12, 2021)
    https://thehill.com/homenews/state-watch/542990-judge-sides-with-austin-in-texas-mask-lawsuit

    That characterization is debatable since a ruling on the merits was deferred to the temporary injunction hearing, for which a date has been set and is noted on the docket: March 26, 2021 09:00 AM. The practical effect, of course, is that status quo ante is preserved. The judge reportedly didn’t see the urgency (and a need for an immediate ruling), given that the mask order and the other restriction had been in effect for months.

  17. […] here for the background. I certainly agree with Andy Brown about the ramifications for local […]