Austin mask mandate somehow still in effect

I admit, I did not expect this.

Best mugshot ever

Austin and Travis County can keep requiring masks for at least a bit longer after a district judge denied Texas Attorney General Ken Paxton’s request for a temporary block of the local mandate.

Paxton sued the local officials for refusing to end the mandate after Gov. Greg Abbott lifted state restrictions earlier this month. Paxton will likely appeal the decision.

District Judge Lora Livingston has yet to issue a final ruling on the merits of the case, meaning Austin and Travis officials may later be told to comply with state officials.

But in the meantime, County Judge Andy Brown said Friday’s ruling at least prolongs the amount of time masks are required in their communities — which gives them more time to vaccinate their residents.

“I’ve been doing everything that I can to protect the health and safety of people in Travis County,” Brown said in an interview. “And Judge Livingston’s ruling today allows us to keep doing that.”


The final outcome of the case could have implications for other Texas cities and counties on how local governments can enforce their own public health mandates, even after the state ordered them to end.

During Friday’s hearing, discussion broadly centered around the question: What powers do local public health departments have, and how do the governor’s emergency powers affect them?

Austin and Travis attorneys said public health officials have the authority to implement health measures — like mask mandates — outside of the context of the pandemic, and therefore should not be affected by Texas’ latest order.

State attorneys argued that Abbott’s emergency powers because of the pandemic trump any local orders.

Livingston pushed back on some of the state attorney’s arguments that not requiring masks allows for individual freedom.

“I’m trying to understand why the person with the deadly virus should have more power than the person trying to stay alive and not catch the deadly virus,” Livingston said.

See here and here for the background. Note that the judge still has not issued a ruling, she just hasn’t granted the state’s motion for an injunction while she makes her decision. The usual trajectory in this sort of thing has been for the good guys (i.e., whoever is on the opposite side of Ken Paxton, whether as plaintiff or defendant) to win in round one and sometimes in round two, but to ultimately lose. Since the legal question at hand in these matters is the imposition of a restraining order or injunction, and since Paxton loves filing emergency appeals, the outcome that matters in the short term – that is, whether or not the good guys get to do what they want to do or force their opponents to do or not do something – is decided quickly, and often renders the actual litigation moot. In this case, the judge has taken her sweet time issuing a decision, so there’s been nothing for Paxton to appeal. Plus, even if all they get out of it is a couple of weeks’ extra time, that extra time is consequential in terms of slowing the spread of COVID. I just did not see it playing out this way. So, whatever happens in the end, good for Austin and Travis County for finding a way to do something in the short term. I don’t know how replicable this is, but it worked this time and that did matter.

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One Response to Austin mask mandate somehow still in effect

  1. Kibitzer Curiae says:

    The Travis County District Clerk’s docket for State v. City of Austin, et al reflects that an order was signed yesterday, 3/29/2021.

    Event Date Party Type Description
    3/29/2021 ORD:ORDER
    3/26/2021 PL OTHER FILING
    3/26/2021 PL NTC:OTHER NOTICE

    District Judge Livingston sent a letter to the attorneys on the case on Friday, with wording as follows:

    Re: Cause No. D-1-GN-21-001046; State of Texas v. City of Austin, et al.; in the 98th District Court of Travis County, Texas

    Dear Counsel:

    I have considered Plaintiff’s Application for Temporary Injunction, the response,
    supplemental briefs, evidence, and arguments of counsel and hereby deny the Application for Temporary Injunction. I cannot find that Plaintiff met its burden to demonstrate the right to the relief it seeks.

    I understand that the Defendants have submitted a proposed order. If there are no objections to the form of this proposed order, let my staff know and I will sign that order. Otherwise, please provide a proposed order agreed as to form for signature. If you have any questions, please contact my Staff Attorney, Brent McCabe.


    Lora J. Livingston
    Judge, 261st District Court

    HAT TIP: Kudos to Law360 for posting the above document on the internet. (Travis County Clerk does not allow open remote access to filed civil litigation documents, and has poor-quality docket meta data, compared to, for example, Harris County).


    An opinion order would have been preferable, explaining the reason (or reasons) for the denial, given (1) the importance of the public health issue to the public most affected by it, and (2) the ramifications of Paxton’s Governor-trumps-Locals argument under a dubious plantation-evoking theory of “The People Can Have Only One Master” preemption.

    See, as a paragon, Judge R.K. Sandill’s Sep. 11, 2020 order in State v. Chris Hollins, available at: (Trial court order denying temporary injunction attached to Brief of Appellant filed by Attorney General at PDF page 46).

    State v. Hollins, No. 14-20-00627-CV, 607 S.W.3d 923 (Sep. 18, 2020), reversed
    by Texas Supreme Court in State v. Hollins, ___ S.W.3d ___, No. 20-0729, 2020 WL 5919729 (Tex. 2020)(“We hold that the Election Code does not authorize an early-voting clerk to send an application to vote by mail to a voter who has not requested one and that a clerk’s doing so results in irreparable injury to the State.”)

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