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And so the re-reopening begins

Are we really ready for this?

Gov. Greg Abbott announced Thursday that most of Texas will be able to loosen some coronavirus restrictions, including letting many businesses increase their capacity to 75%, as soon as Monday.

Retail stores, restaurants and office buildings, which have been open at 50% capacity, will be permitted to expand to 75% capacity. Hospitals will be allowed to offer elective procedures again and nursing homes can reopen for visitations under certain standards.

The new reopening stage applies to 19 of the state’s 22 hospital regions. The three hospital regions excluded are in the Rio Grande Valley, Laredo and Victoria. Abbott said those regions’ hospitalizations are still “in the danger zone,” which he defined as places where coronavirus patients make up 15% or more of all hospitalizations.

At the same time, Abbott said the state was not yet ready to reopen bars, saying they are “nationally recognized as COVID-spreading locations.” He stressed, though, that the state is looking for ways to let bars reopen safely.

[…]

“Gov. Abbott’s press conference today was notable for what he didn’t say,” state Rep. Chris Turner of Grand Prairie, who chairs the House Democratic Caucus, said in a statement. “There was no mention of a contact tracing program, no mention of improving the state’s unreliable data and no mention of expanding Medicaid to increase access to health care for the millions of Texans who are uninsured.”

The Texas Democratic Party said Abbott is “basing his decisions on dirty data.”

Abbott began the news conference by hailing the state’s progress in the fight against coronavirus, saying the “biggest reason” for improvements has been that Texans are taking the pandemic seriously and exercising personal responsibility.

The governor reminded Texans that doctors have said the goal is not to eradicate the virus but to “contain the disease, to limit its harm and to maximize the health care system’s ability to treat both COVID patients as well as other medical needs of the community.”

When it comes to further reopenings, he emphasized the state will consider all data but “rely most heavily” on hospitalizations, calling that metric the “most important information about the severity of COVID in any particular region.” It is also the “most accurate information available on a daily basis,” Abbott said.

To that end, the regions that will be allowed to further reopen must have seen coronavirus hospitalizations make up less than 15% of all hospitalizations for seven consecutive days, according to the governor. If coronavirus hospitalizations rise above the 15% threshold for seven consecutive days in a region, a “course correction is going to be needed,” Abbott said, suggesting the solution would be a reversal of the area’s latest reopenings.

Given that many other countries have essentially eradicated the virus, one could certainly disagree with Abbott’s assertion about what the goal should be. Though to be fair, it does seem impossible to set such a goal while Donald Trump is President, so perhaps this is just Abbott acceding to that reality. The Chron adds some details.

The new regional threshold marks a significant shift for the Republican governor as the state’s pandemic response moves into the fall, with flu season arriving and many schools about to reopen for in-person instruction. He previously resisted committing to a regional approach, and said he would rely on a range of metrics — not just hospitalizations — to determine policies.

But the state’s health agency has been dogged by data backlogs, and some counties said they had lost confidence in state metrics such as the number of new daily infections and the percent of positive COVID tests, also known as the positivity rate. While the state has remedied at least some of the issues, hospitalization data have been more reliable throughout the pandemic.

Other large states, including New York and California, are currently using regional reopening plans based on several criteria, including new cases and test positivity. Public health experts caution against relying on hospitalizations alone, since they lag behind infections and therefore provide a delayed glimpse into the community spread of the virus.

All but two of the state’s 22 hospital regions have previously surpassed the new 15-percent threshold, according to the state’s calculation. The governor did not provide the methodology for how they calculated the percentages, and a spokesman did not immediately respond to questions about how the benchmark was selected.

The state has reported nearly 700,000 infections since March and nearly 14,500 deaths, a toll similar to that in other large states, including California and Florida. New York has reported fewer infections but more deaths, stemming from a surge earlier this year.

Texas has been below 10 percent test positivity for at least two weeks now. Earlier this week, state health officials unveiled a new method of calculating the rate, which shows it first dropped below 10 percent in mid August. Abbott has said before that he would consider further reopenings once the state remained below that threshold for two weeks.

Yes, our lousy data quality is an issue. I get that there’s a lot of pressure to let businesses get back to “normal” again. But let’s be real here: One, plenty of people will still not change their habits to what they were in the Before Times until they feel confident that the pandemic is truly under control. Public opinion is clear that most people do not feel this way, and as such this greatly limits the upside of any reopening scheme. Two, we have been down this road before, and the last time we went this way Abbott basically ignored all the metrics that he himself set and just went about loosening restrictions even though none of his own stated criteria were being met. There’s no reason to believe he has learned this lesson. Three, even if we had complete clarity on hospitalizations, that’s a lagging indicator, meaning that by the time the hospitals have started to fill up again, it’s already too late to stop it. Four, see above about the lack of our data quality, which again strongly suggests that even if Abbott is sincere about turning the car around at the first sign of trouble, that first sign may not be at all apparent when it’s happening.

Finally, the reason why people finally started to take the pandemic seriously is because Greg Abbott finally started taking it seriously, and conveying a message that we all needed to be wearing face masks and social distancing and avoiding large gatherings, especially indoors. We certainly haven’t gotten that message from Donald Trump or his biggest toadies like Dan Patrick. If you want to praise everyone for their personal responsibility, then you need to emphasize that they have to continue being personally responsible, which means wearing masks and so on. If that makes the rock-filled heads of Steven Hotze and his ilk explode, then so be it. Abbott loves being in front of the parade, but he does a crappy job of leading it. As I said the last time we re-opened, I really hope this works out. And I really hope Abbott is serious about backing off at the first sign that it isn’t. A statement from Mayor Turner is here, and the Dallas Observer, Reform Austin, the Texas Signal, and the Houston Press have more.

Politico profile of Lina Hidalgo

Good stuff.

Judge Lina Hidalgo

In late April, Lina Hidalgo stood at a microphone in the Harris County emergency operations center in Houston and pushed up the teal fabric face mask that had slipped off her nose. Her voice was slightly muffled as she spoke. Next to her, an American Sign Language interpreter translated for an audience that couldn’t see her lips. But there was no need to worry her message would be lost. Soon it would become the subject of debate across the country—and so would she.

Hidalgo, the county judge of Harris County—the top elected official in the nation’s third-largest county—announced that millions of people in the Houston area would be required to wear a face covering in public to slow the spread of the coronavirus. People who didn’t comply would risk a fine of up to $1,000. Behind her, charts and graphs told the statistical story that had led Hidalgo to this moment. Since early March, when the state’s first case of Covid-19 had been identified in Houston, the urban heart of Harris County, the number of infected people in the county had climbed to 3,800. That day, the death toll stood at 79 and Houston’s mayor, Sylvester Turner, warned that number could “exponentially increase.”

Hidalgo had been bracing for the disease for weeks. She had sought advice from officials in King County in Washington state, the nation’s first hot spot. Armed with their insight, she rallied her own emergency management and public health officials to prepare a response and on March 16 ordered the closure of bars and restaurant dining rooms. Initially, state officials followed suit. Three days after Hidalgo’s order, Gov. Greg Abbott declared a public health disaster for the first time in more than a century. Texans huddled indoors. But by early April, pressure was mounting on Abbott to end the lockdown. Hidalgo was pulling the other way.

You know what happened from there. You should read the whole thing, it’s mostly stuff you already know but it’s deeply satisfying to see someone who’s been right about the virus in all the ways that matter and who’s been the target of some vicious, racist insults as a result of her being right about it get her due. I’m going to highlight two other bits here:

“The perils of straight-ticket voting were on full display Tuesday in Harris County,” the Chronicle’s editorial board clucked. “Longtime County Judge Ed Emmett, a moderate Republican who’s arguably the county’s most respected official, was ousted by Lina Hidalgo, a 27-year-old graduate student running her first race.”

“We hope she succeeds,” the editorial continued, “but residents can be forgiven for being squeamish about how Hidalgo will lead the county and, by extension, the region’s 6 million people, through the next hurricane.”

I can understand the initial apprehension about a political newcomer taking over as County Judge, and I can understand some unease at it happening as part of a partisan wave. But I guess I’m just going to die mad about all the pearl-clutching over straight-ticket voting, which casts a whole lot of people as mindless automatons instead of individuals who made a choice. That choice in 2018 was to vote for change, and to vote against Donald Trump. One can admire Ed Emmett for his competence, his compassion, his deep concern for Harris County and its residents, and still disagree with him on principles and priorities, and want to see our county government move in a different direction. The sheer condescension in that first paragraph will never not annoy the crap out of me.

“I expect for some Texans it’s a little hard to take that a young Latina who earned her citizenship, as opposed to being born here, has the level of authority that she has,” one of her advisers, Tom Kolditz, told me. “She absorbs every criticism, she listens to every racial dog whistle, she puts up with ageist comments about what her abilities are or are not.”

[…]

Re-opening schools has emerged as another battleground. Hidalgo has taken a position that is consistent with her aggressiveness throughout the pandemic. On July 21, she ordered all school districts in Harris County to delay opening schools for in-person learning for at least eight weeks. Wearing a floral face mask at a recent press conference, her curly hair longer than normal due to the pandemic, she urged the community to work together “until we crush this curve.”

“Then, we can responsibly bring your kids back to school,” she said. “Right now, we continue to see severe and uncontrolled spread of the virus and it would be self-defeating to open schools.”

A familiar chorus of criticism from state and federal Republicans followed quickly. Rep. Crenshaw, among others, has beat the drum that schools must open. And a week after Hidalgo’s announcement, the Texas attorney general said that local health authorities can’t close schools to preemptively prevent the spread of Covid-19. The Texas Education Agency, which oversees public education in the state, announced it wouldn’t fund schools that closed under such orders.

Kolditz, Hidalgo’s adviser and a retired Army brigadier general, has framed the pandemic like a war that can’t be won without a common objective and unity. When Hidalgo was empowered to call the shots in Harris County the pandemic was relatively under control, he said. Since Abbott undermined that, “it’s been a disaster.”

“We’re going to wake up from this pandemic and be stunned by how many lives were wasted by bad leader decisions, and she is not a part of that,” he said.

Hidalgo has largely tried to avoid making the pandemic into a political fight, but she is not naïve about the political implications of every decision. “If we do the best we can and, politically, that wasn’t appropriate for people and I’m not re-elected in two years, I’ll be disappointed, but I’ll be able to sleep at night.”

I mean, we could listen to the person who’s been consistently right, or we could listen to the people who have been consistently wrong. Seems like a clear choice to me, but what do I know?

Why wouldn’t Dems attack Abbott for his COVID response?

I am puzzled by the premise of this article.

As the Democratic National Convention opened on Monday, former First Lady Michelle Obama condemned President Donald Trump for having downplayed the coronavirus pandemic and scenes flashed throughout the night from Houston, an epicenter of the crisis.

“Too many are struggling to take care of basic necessities like food and rent,” Obama said. “Too many communities have been left in the lurch to grapple with whether and how to open our schools safely.”

In Texas, Democrats have seized on similar attacks, targeting Gov. Greg Abbott and his ties to the Trump Administration during the pandemic to undermine Republicans down ballot, especially in diverse suburban districts around Houston and Dallas.

While the governor is not on the ballot this year, Democrats have long believed that their best path to retaking the state House this cycle goes through Abbott, a close ally of the Trump Administration and a fundraising juggernaut who has consistently wielded his name and campaign war chest to help struggling GOP candidates cross the finish line in crucial electoral contests.

The pandemic has given them some of the most forceful attacks in years.

Abbott’s “complete and utter mismanagement of this from day one has made this a completely different calculus for us than it was before,” said Abhi Rahman, a spokesman for the Texas Democratic Party. He added, “Everyone is seeing firsthand just how dismal Republicans are at managing a crisis.”

[…]

Whether the criticism against Abbott lands this fall will depend in part on how the health crisis evolves in the coming weeks. Despite his initial haste to reopen businesses, the governor heeded calls to halt further openings and issued a statewide mask mandate, which drew stiff condemnation from his party’s far-right flank.

Abbott has still declined to issue temporary lockdowns or allow officials in the hardest hit regions, especially the Rio Grande Valley, to issue their own. Statewide, new daily infections and hospitalizations are falling, though more slowly than public health officials would hope, especially as schools begin reopening this month.

The governor has allowed school districts to delay in-person instruction, meaning in some counties, students may not return until a week before the election. Public health experts have warned that returning to in-class learning before infections are largely contained could lead to new surges in hospitalizations and deaths.

Mark Jones, a political scientist at Rice University who is tracking the most competitive Texas House races, said Abbott’s response to the surge this summer was “the most he’s ever bucked the conservative wing of his party.”

“And that’s because he maybe knows that if he hadn’t, Republicans may have lost more in November,” Jones said, adding, “I think for Abbott, a lot will depend on whether the pandemic becomes less severe in the next two months.”

The governor’s approval ratings are the lowest they’ve been since he took office, though he remains well liked by Republicans, according to polls. And Abbott has worked to shore up support within his core constituency of white, older Texans by appearing almost nightly on local TV news outlets.

I mean, obviously the Dems are going to attack Abbott’s response to the pandemic. Even if he had done everything in an objectively optimal manner, even if he wasn’t so closely tied to the dismal failure that is the Trump response to the pandemic, even if there were no complaints about the proper amount of executive power being wielded, there would always be things that could have gone better and could be subject to legitimate criticism. Besides, what other option would Dems have? Largely agreeing with him wouldn’t get them anywhere. You may say well, if he was handling this brilliantly then they shouldn’t be attacking him. I say there’s always room for an opposing perspective, and the critique of this aspect of Abbott’s performance as Governor fits well into other avenues the Dems would like to razz him on.

Attacks aren’t necessarily a positive thing for the attackers. People do generally get a sense for when an attack is unfair and based on lies, so whatever the Dems will be saying needs to be grounded in some valid basis or else it just won’t land. Abbott is also perfectly capable of defending himself and launching his own offensives, thanks to his gazillions of dollars in his campaign treasury. Will Democratic criticism of Abbott’s performance vault someone else into the Governor’s mansion? Maybe, though no matter what happens next that will depend as much on who that person will be as anything else. Nothing is guaranteed, and until Dems win a statewide race it’s all theoretical anyway. But really, what else would they do? It would be political malpractice to not be all over this, and that’s even without all the material Abbott has provided. You’re going to be hearing about this for a long time, so just get used to it.

COVID executive order lawsuit update

Hard to keep track of all these, I know.

The state of Texas and Gov. Greg Abbott have denied a Dallas salon owner’s allegations that COVID-19 emergency orders suspending state laws are unconstitutional.

Abbott and the state specifically denied allegations that the Texas Disaster Act of 1975 “improperly delegates power to the governor and local executive officials,” said the defendants’ answer, filed Tuesday in Dallas County district court.

It’s a constitutional attack that the state of Texas is now defending in multiple courts, as business owners file lawsuits against the government over COVID-19 shutdown orders, or the definitions of essential versus nonessential businesses.

Litigants in multiple cases have gone to the Texas Supreme Court with disputes that arose because of the pandemic, but the high court hasn’t yet accepted an appeal to decide the dispute. But one justice, John Devine, signaled in a concurring opinion that Abbott’s practice of suspending Texas laws during the pandemic was a violation of the Texas Constitution.

“We are going to amend our claims to ask for a temporary injunction, which we are certain will be denied. Then we will start marching it up the ladder to the Texas Supreme Court,” said Warren Norred, who represents Shelley Luther, the Dallas salon owner. “All these cases that have hit the Supreme Court, the high court has said, ‘We’re waiting patiently for you guys to get us a case in the proper channels.’ … They’re watching, but they’ve been very reluctant to act, until we on the litigation side do it right.”

This particular case involves Luther, who made international headlines when she was jailed for contempt of court because she violated a judge’s temporary restraining order. Luther had opened her salon during a time a government shutdown order didn’t allow it, and so the city of Dallas sued her and won the order that said she had to close down again. When a Dallas district judge jailed her for violating his court order, she filed a writ of habeas corpus to the Supreme Court and won an emergency stay that released her from jail. Her habeas writ appeal is still pending.

Later in the litigation, Luther brought the state and Abbott into the case by filing a counterclaim. It alleged that the Texas Disaster Act of 1975, the law that underlies the Dallas emergency rules, is void because it unconstitutionally delegates legislative power that belongs to the governor, county judges and city mayors. She argued that the emergency rules violate separation of powers, are void for vagueness, violate due process and equal protection, and more.

Far as I can tell, the original lawsuit was filed in April. I didn’t blog about it at the time (though I have been following other litigation about coronavirus and executive power pretty closely), and Google searches for a lawsuit in Dallas County involving coronavirus and Greg Abbott run into a wall at May 7, when there were a million stories about Shelley Luther totally pwning Abbott and his shutdown order. Anyway, the state’s response is what you’d expect – the plaintiffs have no standing, the court has no jurisdiction, the law in question is totally legal, etc. This is just in the district court, and we all know it’s going to end up at the Supreme Court, so settle in and get comfortable. We’re just getting started, and there’s a long road ahead.

Wait, you can’t cut that spending!

This is the sort of thing you come up with when you’re out of other ideas.

Property tax revenue would be on the line for cities that choose to defund their police departments under a new legislative proposal pitched Tuesday by Gov. Greg Abbott, Lt. Gov. Dan Patrick and House Speaker Dennis Bonnen.

“Any city that defunds police departments will have its property tax revenue frozen at the current level,” Abbott said, flanked by the other two Republican members of the “Big Three” in Texas state government. “They will never be able to increase property tax revenue again if they defund police.”

The proposal comes after the city of Austin last week unanimously voted to cut at least $20 million from the city’s police budget and earmarked an additional $130 million to potentially be reallocated to other departments. The Austin Police Department, with over 2,600 sworn law enforcement and support personnel, has had an annual budget of more than $400 million for the past two years.

[…]

It’s unclear how the legislation will define defunding police; Abbott, Patrick and Bonnen did not respond to questions requesting clarification. In Austin’s case, most funds will stay within city coffers but will address different needs.

Yeah, I’ll bet. This was the equivalent of the three of them ripping open their shirts and shouting “HULK SMASH!”, and it should be taken as such. Here’s what Scott Henson had to say.

Grits finds this bizarre on several levels. First, I thought conservatives believed revenue caps were a good thing, not a sanction applied to liberal cities for doing something they don’t like.

Indeed, I’m old enough to remember when conservatives favored less spending and smaller government. Now the governor wants to punish cities that reduce spending. We’ve passed all the way through the looking glass, it seems.

Austin cut its police budget by less than five percent. By contrast, Gov. Abbott, the Lt. Governor and the House Speaker recently told state agencies they all must cut their budgets by 5% because of declining tax revenue in the COVID era. Isn’t what’s good for the goose good for the gander?

Finally, cities around the state face budget shortfalls because of COVID combined with revenue caps the Legislature already approved. “Austin bashing” is one thing – folks in the capital city have come to expect that – but are you really going to punish every small town that must cut its police budget because tax revenue declined thanks to the virus?

Ten years ago, Texas Republicans were all about “less government” and “local control.” Now Abbott wants to micromanage municipal budgets to keep spending high. This debate is becoming downright surreal.

That’s one word for it. If you read that second link, you’ll find that most of what Austin did was move some functions out of the Police Department, thus requiring less money to be budgeted in that way, and deferred a cadet class until they revamp their training curriculum. That will likely have the effect of reducing headcount a bit in the short term through attrition, as they cut positions that are currently unfilled. It’s the most basic thing cities do, and they do it with other departments all the time.

But hey, it’s Austin, and thus Something Must Be Done, because [insert primal scream here]. I’m sure if Abbott proposed having the state fund the Austin Police Department as a way of ensuring that it never goes without ever again, Austin City Council would be willing to listen. Until then, my advice is for Abbott to resign his current position and run for Mayor of Austin. It’s clear that’s the job he really wants. The Current has more.

Harris County issues guidance for opening schools

They can’t issue mandates, so this will have to do.

Judge Lina Hidalgo

Harris County Judge Lina Hidalgo on Wednesday unveiled the county’s guidance for school reopenings, recommending based on a handful of COVID-19 metrics that schools offer only virtual instruction in the coming weeks until the virus is further curbed.

County officials are issuing the guidance as families and education officials continue to grapple with the idea of resuming in-person classes in the coming weeks, and after Gov. Greg Abbott barred local officials from ordering campus shutdowns to stem the spread of the coronavirus.

Under the non-binding guidance, Hidalgo and county health officials recommended that school districts offer only virtual instruction as long as Harris County, across a 14-day span, records more than 400 new COVID-19 cases per day, remains above a 5 percent test positivity rate or continues to devote more than 15 percent of hospital beds to COVID-19 patients.

School districts are advised to reopen with reduced capacity as those metrics improve and Harris County hospitals see a 14-day average flattening or decrease in their general and intensive care unit bed populations. At that point, school officials can consult with Harris County Public Health officials on their plans to reopen.

“We simply cannot responsibly reopen schools to in-person instruction right now,” Hidalgo said, acknowledging the frustration of parents, teachers and others. “But we can’t ignore this. We can’t tap our heels together and wish the current numbers away.”

Harris County officials are recommending schools remain closed longer than some other organizations.

[…]

County officials have not yet publicly released the rate of COVID-19 tests coming back positive, though Umair Shah, the director of Harris County’s public health department, announced Tuesday that the rate is between 15 and 16 percent. The Houston Health Department and Texas Medical Center on Monday reported positivity rates of 14.6 percent and 10.6 percent, respectively. The city’s 14-day average has continued to decline since peaking at nearly 30 percent in early July, but remains above the county roadmap’s 5 percent threshold.

Hidalgo and Shah lack the authority to order compliance with the roadmap before the school year begins. Abbott said July 31 that local school boards and state education officials can limit the reopening of buildings in the first eight weeks of the school year, but county officials may not shut down campuses preemptively.

The governor said local health authorities may shut down campuses in response to confirmed outbreaks in a building, but Texas Education Agency leaders said public school districts risk losing state funding if schools remain closed for longer than five days.

You know how I feel about this, so I’m mostly going to peace out here. Judge Hidalgo had ordered schools closed for in-person instruction until at least September 8, back when that was a thing the locals could do. HISD is beginning remote learning only on that date now, and even as a parent of two HISD students, I have no freaking idea when they will be ordered back to the classroom. You can see the Ready Harris roadmap here and the metrics for success here. Maybe if Greg Abbott took this stuff half as seriously as Judge Hidalgo does, we’d be in a better position to reopen schools with some confidence.

Who needs testing?

It’s the surest way to see the infection rate decline, am I right?

The number of Texans being tested for the coronavirus has fallen sharply in recent weeks, a trend that has worried public health experts as officials consider sending children back to school while thousands more Texans are infected each day.

In the week ending Aug. 8, an average 36,255 coronavirus tests were administered in Texas each day — a drop of about 42% from two weeks earlier, when the average number of daily tests was 62,516.

At the same time, the percentage of tests yielding positive results has climbed, up to 20% on average in the week ending Aug. 8. Two weeks earlier, the average positivity rate was around 14%.

On Saturday, the state set a record for its positivity rate, with more than half of that day’s roughly 14,000 viral tests indicating an infection.

Taken together, the low number of tests and the large percentage of positive results suggest inadequacies in the state’s public health surveillance effort at a time when school reopenings are certain to increase viral spread, health experts said.

“Opening the schools is a really complicated problem, and the best thing we can do is get the number of cases down so kids can go back to school safely,” said Catherine Troisi, an infectious disease epidemiologist at UTHealth School of Public Health in Houston. “There are so many reasons why kids need to be in school, particularly younger kids, but we’re finding out more and more they can get infected, and the concern is them bringing it home and spreading in the community and spreading to teachers.

“I think the worst thing would be for schools to open, then close,” she said. “That really makes it hard on parents, that unpredictability, and there’s a lot of costs associated with opening the schools safely.”

[…]

The number of tests performed in Texas has “never been great,” said Vivian Ho, a health economist at Rice University and Baylor College of Medicine, but “it’s extremely troubling” that the numbers have dipped since last month.

“It’s troubling because we can guess at some of the reasons, but we’re not sure,” she said.

She suggested that some people may have been discouraged by long wait times for test results, or less concerned about the virus’ toll in Texas after a frightening peak in July began to flatten out.

A declining number of tests is a particularly thorny issue for schools, Ho said. “No public school has the resources to do testing under the current circumstances. There are huge class sizes and crowded hallways,” she said.

Does any of that sound good to you? Because none of it sounds good to me. Again I say, remember when Greg Abbott’s plans for reopening included sufficient testing capacity and a positivity rate under ten percent? Boy, those were the days. Oh, and as the story notes, the TEA still hasn’t yet released any specifics on which districts will be able to receive waivers to limit in-person instruction beyond eight weeks or under what circumstances. So, you know, the school situation remains a mess. Isn’t this fun?

No eviction moratoriums

So opines Ken Paxton, and we all know what an unimpeachable source he is.

Best mugshot ever

Texas Attorney General Ken Paxton advised Friday that local Texas governments’ attempts to delay evictions for renters grappling with the COVID-19 recession amounted to rewriting state law — something they can’t do, he said in nonbinding legal guidance.

“While local officials do possess certain emergency powers … statewide eviction procedures far exceed the requirement that those powers be exercised ‘on an appropriate local scale,’” Paxton said in a letter. “Government Code does not authorize local governmental entities operating under a declared disaster to independently rewrite state law as it applies to their jurisdiction to prohibit, delay, or restrict the issuance of a notice to vacate.”

Paxton’s letter, issued in response to a question from Republican state Sen. Brandon Creighton of Conroe, seems to chide local officials like Austin Mayor Steve Adler, who last month extended the eviction moratorium in the city until Sept. 30. Travis County Judge Sam Biscoe extended his ban until the same date. In other counties, like Harris and Dallas, some justices of the peace have decided to not hear evictions. It is unclear if Paxton’s opinion will influence those judges.

Adler said in a statement that his orders were lawful and “do not amend statewide eviction procedures,” but rather aim to “reduce person-to-person contact to slow the spread of COVID-19.”

Hector Nieto, a spokesperson for Travis County, said officials there are reviewing the opinion.

Paxton’s opinion could have weight if someone were to sue a local government over its eviction moratorium.

“I can’t say I’m shocked that the state attorney general would side with landlords. Nothing he has done to date shows us that we could expect something different,” said Sandy Rollins, executive director of the housing advocacy group Texas Tenants Union. “A lot of tenants are facing eviction in Texas by zero fault of their own, and putting protections that are normal in almost every other state should be allowed in this pandemic.”

As we know, AG opinions don’t carry the force of law, but they are an obstacle. As with other contentious matters on which Paxton has opined, someone will have to take this to court to force the issue. Of course, this is also something the Legislature can review and revise, and I’d say it needs to be on the ever-increasing list of things the Lege very much needs to do at its first opportunity. On a side note, this adds some context to the city of Houston’s rental assistance program, which has been offered instead of an eviction moratorium order, which a number of people advocated for. A moratorium would certainly have been a more comprehensive tool to keep people who have been affected by the pandemic and the economic devastation that resulted from it in their homes, but not if it could not be enforced. Whatever you think of Mayor Turner’s approach, it was not affected by this action.

The school situation remains a mess

It’s a mess of Greg Abbott’s making.

Some superintendents say that despite Abbott’s statements to the contrary, their ability to respond to the pandemic is still limited, and many of their questions have gone unanswered even as school is slated to start in the coming weeks. They are worried their decisions could result in consequences from the state, including cuts to funding, and some say they would prefer high-stakes decisions affecting student and employee health to stay with medical experts.

“We’re going to make our decisions based on local scientific data, and we’re working with the health authority. That’s our guide,” said Juan Cabrera, superintendent of the El Paso Independent School District. “Nobody on our board, including myself and my administration, are medical doctors, so I’m going to try to take their advice.”

After about 18 local health authorities issued orders delaying in-person instruction because of coronavirus concerns, Abbott said last week that those health officials cannot issue blanket orders preventing all schools in their jurisdictions from opening classrooms before the academic year begins. His statement backed nonbinding guidance from Attorney General Ken Paxton released earlier that week.

Abbott also said school districts could ask for more time to limit the number of students learning in classrooms, on a case-by-case basis, beyond the current eight-week maximum set by the Texas Education Agency. And he reminded school officials that they could move their start dates later in the year with a school board vote, as long as they make up the time. This, he said, gives local school boards the most authority to determine when and how it’s safe to have kids back.

The Texas Education Agency has not yet released any specifics on which districts will be able to receive waivers to limit in-person instruction beyond eight weeks or under what circumstances. But it said it will not fund school districts for unlawful school closures, worrying superintendents who want more certainty of state support while handling an unpredictable pandemic.

“After the eight weeks, there’s a threat to withhold funding if schools don’t have in-person learning. They’ve offered a waiver opportunity … but it takes it out of the hands of the local school district beyond the eight weeks, and that is not local control,” said Kevin Brown, executive director of the Texas Association of School Administrators and former superintendent of Alamo Heights ISD in San Antonio.

A spokesperson for Abbott, when reached for comment for this story, referred to the governor’s previous statements on the issue. Abbott has said that school boards are welcome to consult public health authorities as they make their decisions. And he said local health officials could shut down schools that have COVID-19 outbreaks after they reopen.

Some superintendents, especially in areas where the virus is rampant, balked at the idea of waiting for kids and teachers to get sick before shutting down their campuses in the middle of the year, instead of working with local health officials to close classrooms if cases spike again. And some still wondered: What options do they have if cases are still high after eight weeks?

“Districts, I think, are very concerned about creating these rolling situations where people come back on campus and then get sick and then everybody has to leave again,” said Joy Baskin, director of legal services for the Texas Association of School Boards, on a recent podcast explaining the state’s guidance.

See here, here, and here for the background. Basically, school districts are being told they cannot prioritize safety until they have proof that their schools are unsafe. If they take action that doesn’t conform with regulations that are not currently documented, they risk losing funding. Greg Abbott is the sole decider on these matters, and he has nothing new to say at this time. Any questions?

An analysis of that Paxton opinion about schools and county health authorities

Short version: That’s just, like, his opinion, man.

Best mugshot ever

The law should mean what it says. Rule §97.6(h) of the Texas Administrative Code says: “The health authority is empowered to close any public or private child-care facility, school or other place of public or private assembly when in his or her opinion such closing is necessary to protect the public health; and such school or other place of public or private assembly shall not reopen until permitted by the health authority who caused its closure.” This law was invoked by the Harris County Health Authority this month , directing that K-12 schools in the county start operations entirely online until at least Sept. 7.

On Tuesday, Texas Attorney General Ken Paxton wrote an opinion that effectively invalidated Harris County’s control order and others. The Texas Education Agency accepted the opinion, and said it will defund schools that follow the orders. On Friday, Gov. Greg Abbott added his backing.

While the attorney general’s opinions are non-binding, they are entitled to some respect. So too, though, is the plain language of the law. I believe Paxton has it wrong and that his opinion is likely to kill people.

[…]

The law appears to be clear. The provision of the administrative code cited above gives the power to local health authorities. Despite this, Paxton concludes the law doesn’t mean what it says. He argues if read literally, the law would undercut limitations on the power of local health authorities he believes exist elsewhere in Texas law .

I wouldn’t give that argument a high grade. The “limitations” he cites would cripple local health authority’s power to effectively manage dangerous diseases that cannot survive on surfaces. More importantly, Paxton really can’t explain why Texas couldn’t give local health authorities, who have the authority to take steps such as quarantining an entire county, the (supposedly) limited powers that exist elsewhere and, just as the law says, the explicit power to close schools.

The factual assumptions underlying Paxton’s reading of Texas law are flawed. He writes before closing schools as a form of “area quarantine” (which isn’t the part of the statute the Harris County order relied on), the local health authority must demonstrate “reasonable cause to believe the school, or persons within the school, are actually contaminated by or infected with a communicable disease.”

That condition will exist the instant schools reopen.

See here, here, and here for the background. This too is one person’s opinion, in this case a law professor named Seth Chandler. What any of it actually means is uncertain until either someone sues or the counties and school districts all concede. Given his track record and the political stakes here, it’s quite rational to believe that Paxton is not the most trustworthy authority on this, but until a court gets involved he’s what we have. I hope the various county attorneys, as well as the counsel for the affected school districts, are reviewing this carefully and considering all their options.

SCOTX rejects multiple Hotze petitions

Some good news.

The Texas Supreme Court has refused to hear several challenges by a Houston conservative power broker to emergency orders on coronavirus issued by Gov. Greg Abbott and Harris County Judge Lina Hidalgo.

Without comment, the nine Republican justices on Friday denied a request that they review a trial court that upheld Hidalgo’s April 22 mask order.

The order required residents to wash hands before leaving home and wear masks, stay 6 feet away from each other and avoid touching their faces in public. For a time, Abbott, a Republican, prevented Hidalgo, a Democrat elected in 2018, from enforcing it. The governor later reversed course and issued his own mask order.

Experts said Friday they weren’t surprised that in five recent lawsuits, the state’s highest civil court has declined Dr. Steve Hotze’s demands that it step in and overturn Abbott and Hidalgo’s COVID-19 orders. Each time, the court ruled on procedural grounds.

Hotze, a staunch conservative who for decades has wielded influence with his “slate cards” telling Harris County voters whom to back in Republican primaries, said his bid to protect Texans’ state and federal constitutional rights will continue.

“We fight on,” he said. “It’s obvious to me some members of the Supreme Court just don’t want this case to come up. They don’t want to go against Abbott. Six of them were appointed by Abbott.”

See here for the background, and here for the one-line denial. This follows on the heels of an earlier denial over Abbott’s statewide mask order.

The Texas Supreme Court on Friday dismissed a lawsuit disputing Republican Governor Greg Abbott’s executive orders closing nonessential businesses during the Covid-19 pandemic, but one justice expressed concern he is improperly taking the role of state lawmakers.

The Republican-controlled high court dismissed without comment the lawsuit filed by lead plaintiff and Republican activist Dr. Steven Hotze for a lack of jurisdiction.

Justice John Devine agreed with the dismissal, concluding a lawsuit against the governor is the incorrect vehicle. Nonetheless, Devine said Abbott’s emergency actions are not “categorically immune” from review by the courts and he finds it “difficult to square” the governor’s orders and state law.

“I share relators’ concern in what they describe as ‘an improper delegation of legislative authority’ to the executive branch,” his five-page concurring opinion states. “During declared states of ‘disaster,’ the Texas Disaster Act of 1975 bestows upon the governor the power to issue executive orders that have ‘the force and effect of law.’ Disaster or not, the Texas Constitution doesn’t appear to contemplate any circumstances in which we may condone such consolidation of power.”

Devine, a Republican, said the constitution’s ban on a branch of government exercising another branch’s powers “is not simply a suggestion.”

“In the first article, it states: ‘No power of suspending laws in this state shall be exercised except by the Legislature,’” he wrote. “This provision means what it says. The judiciary may not suspend laws. Nor may the executive. Only the Legislature.”

The Texas Legislature is only in regular session once every two years for 140 calendar days beginning in January. Abbott has so far ignored calls by state lawmakers to call a month-long special session to replace his executive orders during the pandemic.

Devine wrote the court’s dismissal “should not be misperceived as a judicial kowtow” to Abbott, saying there is no “pause” button to the Texas Constitution. He expressed worry that more executive orders will come when a second wave of the virus hits, resulting in “short-term orders could continually escape” the court’s review.

See here for that background, and here for that denial. This recapitulates what I’ve been saying all along – there are serious questions to be asked about the Governor’s powers at this time and what the role of the Legislature should be, questions that I sincerely hope are addressed by the next Lege, but Steven Hotze and Jared Woodfill and their shambling evil Lawsuits R Us clown car is absolutely the wrong way to examine those questions. I would also add that SCOTX’s loopiest Justice John Devine is exactly the wrong person to be setting the outlines of this debate, but at least he did so in a concurring opinion. I’ll take what I can get at this point.

On a side note, in that first article Rice poli sci professor Mark Jones is quoted saying that in a 2015-2017 context, Greg Abbott very likely would have given more weight to the demands of the fringiest wingnuts in the Republican Party, because there would have been no political counterweight to them. But now, at a time when Donald Trump is at best running even with Joe Biden in the polls of Texas and the Democrats have a legitimate shot at taking the State House and knocking off a bunch of GOP members of Congress, some discretion on his part is the better part of valor. In other words, elections do have consequences.

Finally, since all news of bad things happening to Steven Hotze is good news, I was recently sent some relevant court documents by a very helpful reader that I will chare with you here. First, is this by a Harris County judge, issued on his own volition (the fancy Latin legal term for this is “sua sponte”), chiding Hotze and Woodfill for not properly serving all parties of his various lawsuits the relevant pleadings he’d been filing with SCOTX in a timely manner. Even more interesting is this one, filed by the Harris County Attorney on behalf of County Judge Lina Hidalgo and County Fire Marshal Laurie Christianson, accusing Hotze of filing multiple bullshit lawsuits against the county as a harassment tactic and asking for sanctions. Here’s a taste:

Hotze filed five lawsuits and two appeals against Judge Hidalgo in the last four months. Many of these cases are based on fabricated facts, and they all make identical constitutional challenges to the Texas Disaster Act. Based on Hotze’s own statements and actions, it is clear that he brought these duplicative suits for the improper purpose of harassing Judge Hidalgo.

Not only are these duplicative suits made for an improper purpose, but Hotze litigates them in a manner orchestrated to be as harassing as possible. Hotze presents all of his cases as urgent matters requiring emergency temporary restraining orders and emergency petitions for writ of mandamus to the Supreme Court. However, these cases are never urgent, have typically been pre-filed for days or weeks, are often set for hearing long after the orders they complain about have expired, and have nothing to do with science, liberty, or the Constitution. Their “urgency” is manufactured to deny Defendants due process by preventing them time to respond.

Hotze’s five lawsuits were designed to maximize delay and cost and create a never-ending conveyor belt of litigation using a six-step formula: (1) Hold a rally and generate negative media attention toward Judge Hidalgo, (2) solicit plaintiffs for a choose-your-own-adventure style lawsuit, (3) file a lawsuit, never serve it, then email opposing counsel about a hearing on a few hours’ notice, (4) make false claims, (5) amend, dismiss, or appeal before the court considers sanctions, and (6) start over with a new lawsuit and repeat the cycle.

It goes from there. It was filed in the 189th Civil Court, the same one whose judge issued that sua sponte order, and it requests “$10,000 in attorney’s fees and a conditional $10,000 in attorney’s fees if this matter is unsuccessfully appealed” on behalf of Hidalgo and Christianson in their official capacities. I have no idea what the odds of success of this motion are, but you do love to see it.

Abbott finally speaks about schools

Of course, he mostly says weasel words.

Gov. Greg Abbott clarified Friday that Texas schools will be required to provide in-person instruction this fall, but that some districts may be eligible for extended waivers on a “case-by-case basis.”

In a letter signed jointly with fellow Republican state leaders, the governor said local health authorities do not have the power to shut down schools solely to prevent the spread of COVID-19.

The guidance, which does not appear to be legally binding, is the first detailed instruction from Abbott in the reopening plans. Earlier this week, Attorney General Ken Paxton and Education Commissioner Mike Morath said districts would not be able to close campuses for prevention purposes alone, and in fact could lose state funding should they try.

Currently, districts are allowed to delay in-person instruction for up to eight weeks.

“If any school district believes they need an extension beyond eight weeks due to COVID-19 related issues, the (Texas Education Agency) will review that request on a case-by-case basis,” the statement says.

The remarks do not give details about the requirements school districts must meet in order to suspend in-school learning. Even if districts reopen campuses, children in public schools across the state can remain at home, continue online-only classes and still receive course credit.

See here and here for the background. Basically, we don’t know anything today that we didn’t already know. Counties and school districts maybe have some flexibility to make their own decisions, but there are no objective criteria by which those decisions can be judged. Paxton’s opinion still doesn’t have the force of law, because Abbott still hasn’t updated his executive order, but it will take either a lawsuit or open defiance of the opinion to test that proposition. In the meantime, we have this deluded fantasy that in person classroom learning will be like it has been before while the pandemic is still raging. Meanwhile, other school employees fear for their health and safety, with no assurances that anyone is looking out for them. And oh yeah, it’s a lead-pipe cinch that people will die as a result of this. Good luck sorting it all out, fellow parents.

One more thing:

An Abbott spokesman did not respond to questions about whether the governor plans to follow-up with an executive order.

That should be carved into his goddam tombstone some day. What a feckless coward. The Trib has more.

The school situation remains a big ol’ mess

You can blame Greg Abbott for all this confusion.

After weeks of confusion and conflicting signals, Texas has settled into policies that effectively compel schools to reopen their classrooms this fall no later than eight weeks after the academic year begins, whether they want to or not.

Teachers, parents, school administrators and public health officials have been seeking clarity for weeks on how the state will approach reopening schools safely as coronavirus infections and deaths rise across Texas.

Gov. Greg Abbott has not responded directly to questions from reporters about who has the authority to order schools closed in areas hard-hit by the virus, and the Texas Education Agency has sent mixed messages on reopening guidelines.

But despite the lack of any formal announcement from the governor, the die was cast in in a rapid two-step process Tuesday. First, Texas Attorney General Ken Paxton released nonbinding legal guidance saying local public health officials do not have the power to preemptively require all schools in their jurisdictions to remain closed, even as COVID-19 cases continue to climb in many Texas hotspots.

Then, state education officials reversed an earlier decision by announcing they will not fund school districts that keep classrooms closed for longer than the state allows even if ordered to do so by a local health mandate. Taken together, the actions put school districts in the position of reopening classrooms on the state’s timetable or losing funds and risking potential litigation.

Educators and families must now once again rethink their back-to-school plans this fall. The education agency has given school districts up to eight weeks to limit the number of students permitted on their campuses, after which they must open classrooms to all students who want to attend.

That ninth week is looming large for superintendents who are not sure what the public health landscape will look like at that point. Now, they can’t depend on their local health officials to give them more time, without losing money.

“Starting in the ninth week of our respective school years, regardless of the status of the virus in our communities, as the guidance is written today, we would be faced with two options,” said Northside Superintendent Brian Woods in an interview with the San Antonio Express News editorial board Wednesday. “One would be to ignore a local health order, and in doing so likely put our students and staff and families at risk, or lose funding, which is essential to teaching and serving our families.”

At a school board meeting Tuesday night, Woods indicated he and other superintendents would consider filing a lawsuit seeking to keep their classrooms closed longer if necessary. Paxton’s decision to step into the fray weeks before the school year begins has prompted more questions than answers, including whether a deluge of lawsuits is expected to hit Texas courts demanding health mandates be revoked or enforced.

Emphasis mine, and see here for the background. The Chron’s Jacob Carpenter tries to make sense of this hash.

What is the impact of Paxton’s letter?

Paxton’s letter is not legally binding. The only way the local health authority orders can be negated is through an executive order issued by the governor or a judge’s ruling in a lawsuit.

As of now, Abbott has not issued an executive order declaring that local health authorities cannot mandate school closures, and nobody has filed a lawsuit challenging the local closure orders.

As a result, at this time the school closure mandates issued by local health authorities are legally valid and enforceable.

What did Morath do Tuesday?

Hours after Paxton published his letter, Morath issued new guidance saying public school districts risk losing state funding if they keep campuses shuttered solely as a result of a local health authority closure order.

Districts still can require students with at-home technology access to remain in online-only classes for up to the first eight weeks of the school year. School boards also can push back their school start dates.

If local school closure orders are legally valid, why did Morath say districts risk losing state funding if they follow closure orders?

Morath cited Paxton’s letter in issuing the new guidance on school funding.

“As a state agency, we will follow the Attorney General’s guidance,” Morath said in a statement. “Consequently, a blanket order closing schools does not constitute a legally issued closure order for purposes of funding solely remote instruction for an indefinite period of time.

However, another section of TEA guidance says the agency will continue to provide funding to districts that are forced to close campuses by an entity “authorized to issue such an order under state law” — and as of now, local health authorities have issued legal orders.

Essentially, the TEA has provided two potentially conflicting pieces of guidance.

Who can clear up this conflict?

The simplest answer: Abbott.

At any time, Abbott could issue an executive order that negates all local health orders, or he could announce he will allow the orders to stand.

Abbott has made no move in either direction.

Asked multiple times by the Houston Chronicle earlier this month whether he planned to allow local health officials to order school closures, the governor’s office never directly answered the question. Abbott’s staff also did not respond to a request for comment Tuesday following the release of Paxton’s letter.

Yes, our Governor continues to be basically useless. At this point, the best advice seems to be just wait and see what happens. Maybe Abbott revises his executive order. Maybe all the school districts and county health authorities cave. Maybe someone (or multiple someones) files a lawsuit – unfortunately, one of those someones is gonna be Jared Woodfill, so prepare yourself for the stupid – and a judge makes a ruling that forces the issue one way or another. It’s still the case that schools don’t have to open till September 8, which is what HISD is doing, and the first six weeks after that can be online-only. It’s after that it gets dicey. So sit tight and wait to see how it gets sorted out.

Paxton overrides county health orders on schools

So much concern for the children here.

Best mugshot ever

Local health officials do not have the authority to shut down all schools in their vicinity while COVID-19 cases rise, Texas Attorney General Ken Paxton said in nonbinding guidance Tuesday that contradicts what the Texas Education Agency has told school officials.

Shortly after Paxton’s announcement, the Texas Education Agency updated its guidance to say it will not fund school districts that keep classrooms closed because of a local health mandate, citing the attorney general’s letter. Districts can receive state funding if they obtain TEA’s permission to stay closed, as allowed for up to eight weeks with some restrictions.

The change represents an about-face for the agency, which previously said it would fund districts that remained closed under a mandate. It will impact schools in at least 16 local authorities, many in the most populous counties, that have issued school closure mandates in the past month.

Dallas County Judge Clay Jenkins, whose county is among those with a mandate to close schools, said local officials will continue to make decisions to keep students safe “regardless of what opinion General Paxton comes up with.”

“The only way that it would really screw things up is if Abbott tried to take away the control from the local groups,” Jenkins said.

The guidance is non-binding, but local health authorities could face lawsuits especially now that Paxton has weighed in. Paxton’s office declined to comment on whether it would sue local health officials that don’t retract mandates, saying it could not comment on hypothetical or potential litigation.

[…]

The governor’s executive order allowing all school districts to operate overrules local mandates to close, Paxton said. Local health officials have some authority to order schools closed if people in it are infected by COVID-19, but not as a preventive measure.

See here and here for the background. I don’t know what happens next – maybe the counties fold and rescind their orders, maybe someone files a lawsuit to force the issue, maybe we wait and see what happens when schools are supposed to start in a non-pandemic world – but it is clear that one person could end the confusion. The head of the TEA is hand-picked by Greg Abbott, after all, and one presumes Mike Morath would not have let the TEA issue that directive if Abbott was not aware of it. Plus, as noted in the story, Abbott’s own executive order is part of the reason the counties don’t have this authority, at least according to Ken Paxton. So we just need Greg Abbott to come forward and clarify things and

Gov. Greg Abbott’s office did not respond to a request to clarify this earlier this month.

Yeah. You know, whoever runs against Abbott in 2022, they need to make a video montage of all of the “Abbott did not respond to a request for comment” lines in every damn story about coronavirus. If there’s a single defining trait of his reign of error, that’s it. Reform Austin has more.

UPDATE: This says a lot:

Truly, we have a weak and feckless Governor.

A very early glimmer of some possibly good news

We may be finally bending the curve, thanks to people finally taking seriously the need to wear face masks in public.

Three weeks after Gov. Greg Abbott required Texans to wear masks, epidemiologists and disease modelers say they are cautiously optimistic that the mandate is helping the state turn a corner in its efforts to contain an outbreak that has killed more than 4,500 Texans.

Throughout the summer, Texas’ coronavirus outbreak became grimmer by the day and by almost every metric: case counts, hospitalizations, deaths. But in the past week or so, Abbott and some of the state’s public health officials began to see hope in the daily case counts as they appeared to stabilize.

A growing body of evidence points to widespread mask-wearing as an effective strategy for containing the virus, and one North Texas researcher’s statistical analysis published this week argued that local mask orders in the region reduced viral transmission enough to avoid a lockdown. The governor, who has faced blistering criticism for his handling of the pandemic from members of his own political party, immediately seized upon those findings in defense of his statewide order.

“A community lock down is not needed as long as masks & other distancing strategies are used,” Abbott wrote Monday on Twitter, citing the analysis by Rajesh Nandy, a professor of biostatistics and epidemiology at the University of North Texas Health Science Center.

But public health experts warn that more restrictive lockdowns may still be appropriate in the state’s hardest-hit regions, as the disease continues to infect about 10 times as many people each day compared with two months ago, ravaging some parts of the state more severely than others.

State data now appears to show new daily infections leveling off, albeit at nearly record highs. There were around 9,100 daily new cases of the virus on average over the past week. The state recorded its largest number of daily new cases July 15, at 10,791. On Thursday, that number was 9,507.

“The downside is even though we are approaching another plateau, we are at a much higher level than in May,” Nandy said.

Yes, it would be good news if the case rate stops going up. But it won’t truly be good news until the number of infections starts to go down, and then continues to go down. You know, like it has in New York and Europe and Asia and other places with generally functional governments. It’s when we get the virus down to levels at or below where we were when we first shut down back in March that we can truly contemplate things like safely sending kids back to school and reopening the economy. You’d think this would be something that would be better understood by the elected officials who have been so resistant to taking basic measures to fight COVID-19 – poll data consistently shows that the public understands this, even if they’re not always great about doing it in the absence of leadership – but clearly for some people, these things have to be learned the hard way. And as they are learning this, the hospitals are still at capacity, and could get overwhelmed at any time.

The irony there is that it may take another broad, mostly national shutdown to get to the point we want to get to. That won’t happen under this President, and if it’s still a necessary thing under the next one, then my god have we effed this up beyond all comprehension. In the meantime:

Now Starr County is at a dangerous “tipping point,” reporting an alarming number of new cases each day, data show. Starr County Memorial Hospital — the county’s only hospital — is overflowing with COVID-19 patients.

The county has been forced to form what is being compared to a so-called “death panel.” A county health board – which governs Starr Memorial – is set to authorize critical care guidelines Thursday that will help medical workers determine ways to allocate scarce medical resources on patients with the best chance to survive.

A committee will deem which COVID-19 patients are likely to die and send them home with family, Jose Vasquez, the county health authority, said during a news conference Tuesday.

“The situation is desperate,” Vasquez said. “We cannot continue functioning in the Starr County Memorial Hospital nor in our county in the way that things are going. The numbers are staggering.”

That’s the same Starr County that was once lauded for its low infection rate and ability to keep the virus under control. That was back when local officials had the authority to make and enforce shelter-in-place orders, before Greg Abbott took that authority away. Starr County now plans to issue a new shelter in place order, though of course they won’t be able to enforce it. Greg Abbott could let them enforce it, and he could let other local governments that want to take a step back in an effort to get their numbers down do so, but that’s not something he has any interest in doing. And so here we are.

There’s a lot of COVID litigation out there

Texas Lawyer surveys the landscape.

The COVID-19 pandemic has created a growing subset of new business litigation in Texas: companies suing the government over shutdown orders or definitions of essential versus nonessential businesses.

One of the latest examples to make headlines was a large group of bar owners who sued Texas Gov. Greg Abbott over his order that closed bars again because of the rising infection rate in the Lone Star State.

But Texas Lawyer’s research revealed that the bar litigation was at least the 15th similar lawsuit filed in the state since the onset of the pandemic in early March. It’s likely that there are even more cases filed in small or mid-sized cities in Texas.

One of the most interesting legal claims raised by this type of litigation is whether the governor has exceeded his authority under the Texas Disaster Act to suspend laws in the state, said Brad Nitschke, partner in Jackson Walker in Dallas, who has been tracking COVID-19 litigation.

“The executive is given a large toolbox to respond to emergency situations. To some extent, at least, it sort of has to be that way,” Nitschke said. “I think we are more accustomed in Texas to what that looks like for a hurricane or tornado, or a catastrophic drought.”

Using the same statute to respond to a pandemic is sort of like trying to put a square peg into a round hole, he added.

“It’s clear the governor has significant authority to act in the case of a disaster,” Nitschke said. “I think the unique circumstance of a pandemic like this one is going to give courts a chance to figure out what the outer limits of that authority may be.”

[…]

It will be tough for plaintiffs to win these sorts of cases, said Christy Drake-Adams, assistant general counsel of the Texas City Attorneys Association and the Texas Municipal League.

Drake-Adams noted that the league’s insurance risk pool has seen eight similar lawsuits against small and mid-sized Texas cities, which generally argue about the definition of essential versus nonessential businesses.

“They think they should have been allowed to continue operating, because they were an essential business,” explained Drake-Adams.

She said that government defendants who are fighting these types of lawsuits have a strong defense: That governmental immunity protects them from the claims.

“To the extent that plaintiffs are throwing in constitutional claims, I would say it’s pretty clear that the government has broad authority to act to protect the public health and to regulate in times of emergency, and that authority is expressly provided in law. It’s not clear that anyone’s constitutional rights have been violated as a result of those regulations,” Drake-Adams said.

There was a quote in there from Jared Woodfill about why the plaintiffs are right, but 1) screw that guy, and 2) we’ve heard from him plenty in the stories about each individual lawsuit he’s filed. This was the first time I’d seen an analysis from someone not connected to any of the lawsuits, though since cities or counties are the defendants in some of them, the perspective given here isn’t fully objective, either. Texas Lawyer reviewed the Hunton Andrews Kurth COVID-19 Complaint Tracker for the basis of this story; you can see media coverage of that tracker here. About half of the lawsuits involve the state (two), a state agency (one), or local governments (five), the rest are between private entities. I feel like it will be multiple years before there’s little to no litigation of interest of this nature to continue tracking.

Is it time to step back?

It’s not a question of whether we want to do this, it’s whether we need to.

Mayor Sylvester Turner

Houston leaders are calling for another two-week shutdown as dozens of Army personnel are set to arrive Monday to help fight a virus that continues to set record hospitalizations and deaths in the Texas Medical Center.

Mayor Sylvester Turner said it’s time for the city of Houston to “step back,” as regional cases rose to 63,864 on Sunday — up 1,596 from the day before. There have been 646 deaths in the Houston area. Positive results are coming back for about 16 percent of Texas test-takers.

“Let’s look at the numbers, look at the data, see where things are,” Turner said over the weekend. “And then gradually, move forward again.”

Harris County Judge Lina Hidalgo advocated an immediate stay-home order.

“We need to stick with it this time until the hospitalization curve comes down, not just flattens,” she tweeted Sunday. “Many communities that persevered in that way are reopening for the long haul. Let’s learn from that & not make the same mistake twice.”

[…]

While Hidalgo issued a stay-at-home order in March, Abbott has since taken over decisions on whether to open or close businesses and has refused to allow local officials to make decisions on the matter. Hidalgo’s office has unsuccessfully petitioned the governor for power to issue more restrictions as COVID-19 hospitalizations spiked.

But on Friday afternoon, Abbott, too, said that he could consider expanding which nonessential businesses would shut down should the pandemic continue to worsen.

“If we do not slow the spread of COVID-19 … the next step would have to be a lockdown,” the governor told KLBK-TV in Lubbock.

Let’s be clear, nobody wants to do this. It will be devastating to the businesses that have been able to reopen (whether they should have been allowed to or not), and people will lose jobs as a result at a time when extended unemployment benefits and other fiscal stimulus to help people tide themselves over are being held hostage by the Republicans. The problem is that we are at the point that we thought we’d been able to avoid when we shut down the first time, with the death rate spiking and the hospitals overloaded. There may be no other way to try to slow this thing down, short of building a time machine and going two months in the past to force Greg Abbott to allow local face mask orders and a more deliberate reopening strategy. But here we are, and unless there’s a sudden flattening or downward trend in the numbers real soon, I don’t know what other choice there is. Say it with me now: This didn’t have to happen. It’s Greg Abbott’s fault that it did happen.

Who wants to enforce Greg Abbott’s mask order?

Anyone? Anyone? Bueller?

Gov. Greg Abbott called on police across Texas to step up enforcement of his mask order amid the mounting pandemic, explaining Thursday that they can either “be part of the problem or part of the solution.”

Facing a revolt over the mandate within his conservative base, the governor acknowledged in a new round of interviews that masking is inconvenient, but said the alternative of locking the state down again is far worse.

“We have a short period of time in the next couple of weeks to bend the curve of this explosion in cases and hospitalizations,” he said in an interview on KSAT in San Antonio. “If we can enforce this, we will be able to keep the state open and reduce hospitalizations.”

Some local law enforcement officials, including the sheriffs in Montgomery and Gillespie counties, have refused to enforce the new order, citing personal liberties or enforcement logistics. On Wednesday, the Montgomery County Republican Executive Committee voted 40-0 to censure Abbott, joining at least three other county executive committees that have taken similar steps.

It’s more than just a few.

When Gov. Greg Abbott issued a statewide executive order requiring Texans to wear masks in public, he gave counties the opportunity to opt out if they have a low number of active coronavirus cases.

A week later, 78 counties have taken him up on that offer. And a handful of other local governments have insisted that they won’t enforce the order even though they don’t qualify for the opt-out provision. Officials cited a desire to preserve personal freedoms or concerns about enforcement.

“I think it’s an insult to Texans to be required to do something they should have discretion for,” said Hugh Reed, the top administrator for rural Armstrong County, near Amarillo, which opted out.

In a press release announcing the order, Abbott said that “wearing a face covering in public is proven to be one of the most effective ways we have to slow the spread of COVID-19.” Public health experts broadly agree that masks slow the spread of the virus, and the Centers for Disease Control and Prevention recommend face coverings for anyone 2 or older in public settings.

The order came as coronavirus cases have grown quickly in the state. As of Thursday, more than 9,600 people were hospitalized with the virus.

In order to opt out of the requirement, the counties need to have 20 or fewer active COVID-19 cases. Given the spread of the virus in recent weeks, only counties that are sparsely populated and rural tend to qualify. Most are in conservative areas of the state.

Rex Fields, the top elected official in Eastland County, said Abbott’s option for counties with low coronavirus case counts “gives people some personal freedom.”

But a few local officials without that freedom are also choosing not to enforce the order. In Montgomery County, which has a population of over 600,000 and has reported more than 2,700 coronavirus cases so far, the sheriff’s office said July 3 that it would not take action on the mask rule.

“This order includes specific language prohibiting law enforcement from detaining, arresting, or confining to jail as a means to enforce the order,” the agency wrote in a press release. “This language strips law enforcement of the necessary tools to enforce compliance with the law.”

Yeah, so maybe undermining the rule of law was not a great idea. Greg Abbott could be in a position to insist that his order be enforced, if only Greg Abbott hadn’t so clearly demonstrated that Greg Abbott’s executive orders regarding COVID-19 are just suggestions.

That said, some places are more serious about trying to stop the spread of COVID-19.

Gov. Greg Abbott signaled his encouragement Wednesday to Austin city leaders to move forward on “additional enforcement mechanisms” related to a recent order Abbott issued requiring Texans to wear masks in most public spaces.

In a letter to Austin Mayor Steve Adler, Abbott said the city’s consideration of new enforcement measures “to ensure compliance with my Executive Orders is an important step toward reducing the spread of the novel coronavirus (COVID-19).”

“As you know, these Orders were created and adopted based on advise from medical experts, and if these Orders are followed, we will be able to protect both public health and the livelihoods of our citizens,” he added.

The Austin-American Statesman reported Wednesday that the City Council will meet Thursday “to vote on a resolution that would allow for a fine of up to $2,000 for anyone violating a ‘health authority rule’ like not wearing a mask” and to take “civil action against any person who maintains a business or site that does not comply with minimum health standards.”

Another riddle solved, apparently. That resolution passed unanimously on Thursday. I’m sure it’s just a matter of time before the Hotze contingent files a lawsuit against this, but in the meantime it’s something. (Hey, Greg! Now do letting counties issue stay-at-home orders.)

Now to be fair, if I’m going to advocate for letting local authorities have some of their authority to make local decisions back, I’m going to be circumspect about criticizing a small rural county with a still-low infection rate for not wanting to enforce a mask order. But let’s be clear that all parts of the state are vulnerable, and those lightly populated places also tend to be many miles away from hospitals, so their residents are in greater jeopardy should they get sick. The approach I’m looking for here is one that says “this is the minimum that counties must do – they can go above and beyond it within reason, but they have to do at least this much”. That philosophy has been distinctly lacking in recent years in this state.

But here we are, and here we once again face the worst case scenario, at least as far as Greg Abbott is concerned.

With Texas continuing to break records for new coronavirus deaths and hospitalizations this week, Gov. Greg Abbott reiterated Friday afternoon that things will continue to get worse. And if people keep flouting his new statewide mask mandate, he said, the next step could be another economic lockdown.

“Things will get worse, and let me explain why,” he told KLBK TV in Lubbock. “The deaths that we’re seeing announced today and yesterday — which are now over 100 — those are people who likely contracted COVID-19 in late May.

“The worst is yet to come as we work our way through that massive increase in people testing positive.”

Texans will also likely see an increase in cases next week, Abbott said, and people abiding by his face mask requirement might be the only thing standing between businesses remaining open and another shutdown.

“The public needs to understand this was a very tough decision for me to make,” Abbott told KLBK of his face mask mandate. “I made clear that I made this tough decision for one reason: It was our last best effort to slow the spread of COVID-19. If we do not slow the spread of COVID-19 … the next step would have to be a lockdown.”

And then when sheriffs in heavily Republican counties refuse to enforce that, then what? Say it with me now: None of this had to happen. But it did, and it’s Greg Abbott’s fault.

Greg Abbott has no one to blame but himself

Let’s be very clear about this.

Gov. Greg Abbott is under increasing political fire from fellow Republicans as well as Democrats as he responds to a sharp rise in coronavirus deaths — a record 112 on Wednesday and 106 on Thursday — by implementing more restrictions on Texans and increasingly warning of another shutdown if people fail to wear masks.

Prominent Democrats are blasting Abbott for reopening too quickly and shrugging off early warning signs. On the other side, county Republican Party committees are passing censures of Abbott for some of his latest orders, including one requiring people to wear masks in counties reporting at least 20 people infected with COVID-19. Those who violate the order face $250 fines, but no possibility of jail time.

On Wednesday, the Montgomery County Republican Executive Committee voted 40-0 to censure Abbott, joining at least three other county executive committees that have taken similar steps.

Even Republican state lawmakers are beginning to press Abbott to call a special session to cede some of the decision-making to them. State Sen. Charles Perry, R-Lubbock, said in a Fox News Channel interview that it’s time for the Legislature to be more involved and not just leave it all up to the governor.

“We have information and a lot of misinformation out there, honestly, that needs to be vetted by a legislative body,” Perry said.

It’s all coming as Abbott warns the daily number of deaths is going to keep rising.

“I think the numbers are going to look worse as we go into next week,” Abbott told Fox 26 in Houston during an interview Thursday night. “We need to make sure there are going to be plenty of hospital beds available in the Houston area.”

[…]

The criticism from Democrats comes days after Harris County Judge Lina Hidalgo said Sunday on ABC’s This Week that she and other county and city officials need Abbott to give them the authority to issue stay-at-home orders again, calling it the surest way for them to get out of the crisis. She said leaders need to be taking bold aggressive steps because of how serious things have become in Houston and Texas overall. Abbott has so far declined.

“We don’t have room to experiment,” Hidalgo said. “We don’t have room for incrementalism, when we’re seeing these kinds of numbers, nor should we wait for all the hospital beds to fill and all these people to die before we take drastic action.”

I have many thoughts about this.

– The original sin in all this, from whence all other bad decisions and unenforceable actions flow, was the inexcusable, unfathomable, and completely self-inflicted Shelley Luther saga, which the Chron’s editorial board correctly identifies as a primary failing. It’s not just that Abbott took the teeth out of his own executive orders the very first time they ran into resistance, taking Luther off the hook like that – hell, turning her into a goddam folk hero, paying her court fees, bowing and scraping to her – it’s that this sent a very clear message that there are no consequences for violating any laws or orders related to coronavirus. You can draw a straight line from this to sheriffs saying they can’t or won’t enforce the current mask order, even as Abbott is now practically begging everyone to wear a mask. Turns out undermining the rule of law is a bad idea. Who knew?

– The problem with the Shelley Luther incident wasn’t just the undermining of the rule of law, or the evisceration of any consequences for pro-COVID behavior. It was the message it sent, from the top, that the people who didn’t feel like doing their part to fight the virus, who felt that their feelings and personal definition of “liberty” mattered more than anything else, were legitimate and needed to be handled as special and exceptional. Abbott could have very reasonably expressed empathy for Shelley Luther, said words to the effect of “I know this is hard, I know small businesspeople like her are suffering, but we have to bear down and really beat this virus back so that we can get back to normal life and business like we all want”. The fact that he didn’t is a clear and ongoing failure of leadership on his part.

– Yes, I know, that same message about “my feelings are bigger than your face mask” as well as pressure to “reopen the economy” came from Donald Trump as well, and Abbott had to be concerned about the heat he was getting from his fellow Republicans. I will note that other Republican governors, like Mike DeWine in Ohio, managed to figure this out. No one ever said that being Governor was going to be easy. If Greg Abbott didn’t have the fortitude to withstand the carping from the Steven Hotze wing of his party, then he has no business being Governor.

– Another self-inflicted wound in all this has been Abbott’s abrogation of the executive powers that Mayors and County Judges had exercised in the early days of the pandemic. Remember when cities and counties were issuing stay-at-home orders, and Abbott used that as justification for him not doing the same statewide because different counties have different needs? Abbott eventually and correctly bowed to pressure to issue a statewide stay-at-home order, but in doing so he basically took away all of the local decision-making power that Mayors and County Judges had. That has come back to bite him, as the big urban counties have been complaining for weeks about their need to respond to local conditions. The capper to this was the utterly ludicrous “you solved my riddle”, in which Abbott revealed that County Judges had the power all along to order businesses to require masks for their employees and customers, but he wasn’t going to tell them that, they had to figure that out on their own even though they had been loudly saying that getting more people to wear masks was the main thing they could do to help with the pandemic. Letting local authorities have more power to make local decisions was not only the better call for fighting the virus, it would have shifted a lot of the heat Abbott now feels from him to them, with “them” mostly being Democrats. When Abbott took their power away back in April, it was seen as him coming in to take credit for their work. Too bad for him that work wasn’t finished, because it’s all on him now.

– Let’s also not forget the fact that when Abbott announced his intent to reopen, he announced four criteria that were supposed to guide the reopening timeline. Those were declining case rates, declining positive test rates, enough contact tracers, and sufficient hospital capacity. Only that last one was ever met, and because the other three were completely ignored, the hospitals are now overwhelmed. A more far-sighted leader would have counseled patience, saying we need to reach these benchmarks before we get to do the things we want to do. But as established, Abbott isn’t a leader at all, and so here we are.

– Finally, and I have said this before as well, I do agree that at some point Abbott should have called a special session, partly to clarify his own executive powers and thus blunt some of the lawsuits that have been filed over stay-at-home and face mask orders, and partly to share the responsibility with the legislative body. Abbott has repeatedly shown that he likes to operate in a bubble, where he does his thing and no one gets to ask him any questions unless they’ve been pre-approved and invited to do so. I get that hating on the mainstream media is a standard part of the Republican playbook, but I think Abbott’s self-imposed isolation isn’t serving him well simply because he’s not hearing from anyone who isn’t in his inner circle. The Lege can serve as a foil, or at least a partner in taking the blame, but not when you’re a one-man show.

Every step of the way, Greg Abbott could have made better decisions. It was clear at the time he was making those decisions that he was choosing poorly. Now we are all facing the consequences of those bad decisions. Greg Abbott bears the responsibility for what happened. Never forget that.

So how’s Greg Abbott doing post-mask order?

Greg Abbott consistently polls as the politician with the highest approval rating in the state. He was basking in adulation a few weeks ago when things were reopening and the coronavirus numbers still looked good. How are things going for him now that he’s had to shut down the bars and require masks and we’re all worried about the hospitals overflowing? Well, there’s this:

The Montgomery County Sheriff’s Office says it will not enforce Gov. Greg Abbott’s order requiring most Texans to wear masks when they’re in public.

In a statement, the agency said it “will take NO actions to enforce” the order, arguing that it is unenforceable because it doesn’t allow law enforcement to detain, arrest or jail violators.

“This language strips law enforcement of the necessary tools to enforce compliance with the law,” the agency said.

[…]

The sheriff’s office argued the order could subject it to civil liability if deputies stop someone for failing to wear a mask and it is misconstrued as a detention. The agency said “holding someone for the purpose of issuing a citation related to a fine is a legally defined detention under current Texas law.”

“We are in a public health crisis and we will use this opportunity to educate our community while still respecting individual liberties,” the sheriff’s office said.

They did say they would respond to a call from a business who had a customer who refused to wear a mask upon entering. Sheriffs from a couple of other Republican counties have made similar statements as well. I mean, I can kind of see their point here, and as we know Greg Abbott basically destroyed the legitimacy of any kind of enforcement mechanism for mask and stay-at-home orders in the Shelley Luther debacle. It’s still a bit stunning to see a Republican sheriff say publicly that they won’t do what Abbott wants them to do. They appear to have no fear of political blowback.

Which leads us to this:

The Ector County Republican Party voted Saturday to censure Gov. Greg Abbott, accusing him of overstepping his authority in responding to the coronavirus pandemic, while state Sen. Charles Perry, R-Lubbock, called for a special session so lawmakers could have a say in how Texas proceeds amid soaring caseloads.

The party executive committee in Ector County, home to Odessa, passed the censure resolution 10-1, with one abstention and three voting members who were not present, according to the chairperson, Tisha Crow. She said she was among those who supported the resolution, which accuses Abbott of violating five party principles related to his exercise of executive power during the pandemic.

While the resolution asks that delegates to the state convention later this month consider — and affirm — Ector County’s action, Crow said consideration is “not guaranteed,” and one precinct chair, Aubrey Mayberry, said the resolution “doesn’t have any teeth” for now — but that it was important to send a message about what they consider Abbott’s overreach.

Mayberry, who voted for the resolution, said he was working with precinct chairs in other Texas counties to get similar resolutions passed ahead of the convention.

That’s a pretty direct slap in the face, and with the state GOP convention almost upon us, the potential for this to become A Thing is substantial. Will that represent some steam that has been blown off, or will it be the first step towards a serious rebellion? That’s an excellent question.

[State Sen. Charles] Perry wrote Saturday on Facebook that he is “deeply concerned about the unilateral power being used with no end in sight.”

“This is why I urge Governor Abbott to convene a special session to allow the legislature to pass legislation and hold hearings regarding the COVID-19 response,” Perry said. “It should not be the sole responsibility of one person to manage all of the issues related to a disaster that has no end in sight.”

In the upper chamber, state Sen. Bob Hall, R-Edgewood, has also called for a special session, as have several House Republicans.

State Rep. Trey Martinez Fischer had previously called on Abbott to work with the Legislature on COVID response instead of acting so unilaterally, though he’s a Democrat and I didn’t see the words “special session” in that article. As I have said repeatedly, the extent of the Governor’s emergency powers is a subject that really demands further discussion, and so far all we’ve gotten is a bunch of Hotze/Woodfill lawsuits, which is the worst possible way to come to a decision about what Abbott and whoever succeeds him can and cannot do. Among other things, I think this is exposing a real weakness in our 20-weeks-every-other-year legislative calendar, precisely because there’s a lot of things that the Lege can and should be doing right now, but is unable to because they’re not in session. The same was true in 2017 following Hurricane Harvey, though at least there everyone understood what the emergency actions were for and there was a clearer metric for when they would be lifted.

I would argue that legislators need to think about proposing some constitutional amendments to 1) more clearly define the parameters of the Governor’s executive power, and 2) maybe automatically trigger a special session under certain crisis conditions. I obviously haven’t thought this all through, and I don’t want to see legislators rushing forth with half-baked ideas, but I am serious that we need to take a look at this. The current model of “Governor hands down orders from on high that no one knew were coming and then gets sued by a couple of crackpots from Houston so that the courts can eventually sort it all out” doesn’t seem like it’s sustainable.

How Texas screwed it all up

That’s a more succinct headline for this story about how Texas went from having a low COVID-19 infection rate to one of the worst in the country. And the vast majority of the responsibility for this is on Greg Abbott.

In Houston, the largest medical campus in the world has exceeded its base intensive care capacity. In the Rio Grande Valley, elected officials pleaded this week for military intervention to avoid a “humanitarian crisis.” And in several major cities, testing sites are overrun, with appointments disappearing in minutes and hundreds waiting in line for hours.

Eight weeks ago, the White House lauded Texas as a model for containing the COVID-19 pandemic.

Now, Gov. Greg Abbott’s plan to reopen the economy has unraveled as the state struggles to contain one of the worst outbreaks in the country.

“We’re on the verge of a nightmarish catastrophe,” said Vivian Ho, a health economist at Rice University and the Baylor College of Medicine. “On May 1, I thought we actually had a chance to get this virus under control and get the economy opened up safely. I’m not sure we can get it under control anymore.”

Public health experts say the worst of the crisis was avoidable in Texas, where Abbott stripped local officials of the ability to manage their own outbreaks and until Thursday refused to mandate masks and other basic mitigation practices. The governor reopened before the state could adequately monitor the virus, health experts said, then ignored signs in late May that infections were beginning to run rampant.

“That is the point at which you say hang on a sec, we’re staying where we are, and are probably taking a step back to understand the scale of the problem here,” said Bill Hanage, an associate professor of epidemiology at Harvard’s T.H. Chan School of Public Health.

Without the tools in place to test quickly for infections and track those exposed, authorities believe the state was left blinded as the virus spread among younger Texans, who are less likely to develop symptoms.

Spokesmen for Abbott and state Health Commissioner Dr. John Hellerstadt did not respond to requests for comment. Asked at a televised town hall Thursday why he had not mandated masks sooner, the governor said the “data was only recently bad.”

“It was only in the past couple of weeks that we saw this spike in people testing positive,” Abbott said.

[…]

On April 27, Abbott said he would reopen the state in phases based on data and guidance from medical professionals, pledging not to simply “open up and hope for the best.”

His advisers laid out four criteria to guide the reopening: a two-week reduction in cases, hospital capacity for all patients, the ability to to conduct 30,000 daily viral tests and hire 4,000 contact tracers.

Abbott, however, did not commit to following them. Only in mid-June would the state begin meeting its testing goal. It has yet to hire enough contact tracers or see a sustained drop in infections.

He said the plan was designed to be applied regionally, with lighter restrictions imposed in areas with few cases, then overruled officials from large counties who tried to enact more restrictive edicts.

Abbott punctuated that point by effectively gutting Harris County Judge Lina Hidalgo’s April 22 mask order when he stripped the ability of local governments to punish residents who violated such mandates.

Several prominent Republicans, including Lt. Gov. Dan Patrick and U.S. Rep. Dan Crenshaw, had condemned Hidalgo’s order and its potential $1,000 fine as an abuse of power. They have continued to argue that the severity of the virus is being embellished, and some have even questioned whether masks are effective at stopping it from spreading.

The mask debate — which took another turn Thursday when Abbott issued his own statewide mandate — has sent mixed messages that may have left residents with the impression that face coverings are unimportant, said Dr. Gregory Tasian, an associate professor at the University of Pennsylvania Perelman School of Medicine.

“Without a clear direction from the state level, some of those masking policies become much less effective,” Tasian said.

There’s more, but you get the idea. I’ve said this before and I’ll say it again, Abbott never made any effort to meet those four metrics that he himself and his vaunted “Strike Force” laid out. (By the way, when was the last time you saw a news story about COVID-19 in Texas refer to the “Strike Force”?) Each time he relaxed another part of the previous restrictions in order to push reopening further, I pointed out that we had no plan and no reason to proceed as if everything was going to plan. All we had was hope and distraction, and look where that has gotten us. The extremely “mixed messages” (to put it lightly) about masking and social distancing was another huge problem, one that also didn’t have to happen. I get that Abbott felt pressure from Donald Trump and from the screaming howler monkeys of our state like Dan Patrick, but for Christ’s sake he’s the Governor, he’s got a gazillion dollars in his campaign treasury and by far the highest approval ratings of anyone in the state, and it’s his fucking job to be a leader. He failed at that at every step of the way.

What’s even more appalling is that he already had a model that was working for him, and that was to get out of the way of the local leaders, who were uniformly ahead of him on all the mitigation steps we first took back in March. It would have been perfectly consistent with his stated belief that some parts of the state needed more restrictions than others to let Lina Hidalgo and the other county judges impose face mask orders and keep a tighter rein on businesses as they saw fit. I believe it would have been politically expedient for him as well, since the raging assholes would have aimed all their fury and lawsuits at them instead of at him. It was when he caved in the most cowardly way possible to Shelley Luther, who was being held accountable to HIS OWN EXECUTIVE ORDER by a Dallas County judge that we all should have known what was coming next. Sure is funny how the cries for “law and order” get silenced when it’s a white suburbanite being taken to court.

I also want to note the bit in this story about nobody on Team Abbott responding to requests for comment. Another hallmark of this crisis, which has been a recurring theme of the Abbott reign in general, has been the way he operates in a closed and non-transparent fashion. He does the things he does, on his own and in consultation with no one outside his bubble, with no mechanism for feedback or consideration of other perspectives. I can’t help but think that this style has not done him any favors lately, and I expect it will result in a Legislature that doesn’t feel much need to defer to him or his priorities in 2021, and that’s even if the Republicans manage to hang onto the House. And, as some people have speculated, he could be headed for a challenge from the right in the 2022 primary. I doubt that my own preferences here would do anything to dissuade such a challenger. But a better outcome from the pandemic might go a long way towards shoring up his political position.

So here we are, and as bad as things are right now, they are certain to get worse in the short term, because that’s the way this virus operates. If we’re very lucky, the mask order and mild dialing back of reopening might make things be less bad. But it’s going to be bad. And it didn’t have to be. It’s Greg Abbott’s fault that it is.

Abbott finally issues a mask order

Better late than never, but it’s pretty damn late.

Gov. Greg Abbott issued a nearly statewide mask mandate Thursday as Texas scrambles to get its coronavirus surge under control.

The order requires Texans living in counties with 20 or more positive COVID-19 cases to wear a face covering over the nose and mouth while inside a business or other building open to the public, as well as outdoor public spaces, whenever social distancing is not possible. But it provides several exceptions, including children who are younger than 10 years old, people who have a medical condition that prevents them from wearing a mask, people who are eating or drinking and people who are exercising outdoors.

The mask order goes into effect at 12:01 p.m. Friday.

The order represents a remarkable turnaround for Abbott, who has long resisted such a statewide mask requirement, even as the coronavirus situation has gotten worse than ever over the past couple weeks in Texas. When he began allowing Texas businesses to reopen this spring, Abbott prohibited local governments from punishing people who do not wear masks. As cases began to rise earlier this month, he clarified that cities and counties could order businesses to mandate customers wear masks.

In recent days, though, Abbott had held firm against going further than that, saying he did not want to impose a statewide requirement that may burden parts of the state that are not as badly affected by the outbreak.

Abbott on Thursday also banned certain outdoor gatherings of over 10 people unless local officials approve. He had previously set the threshold at over 100 people. The new prohibition also goes into effect Friday afternoon.

[…]

Abbott’s announcement came a day after the number of new daily cases in Texas, as well as hospitalizations, reached new highs again. There were 8,076 new cases Wednesday, over 1,000 cases more than the record that was set the prior day.

Hospitalizations hit 6,904, the third straight day setting a new record. The state says 12,894 beds are still available, as well as 1,322 ICU beds.

Abbott has been particularly worried about the positivity rate, or the share of tests that come back positive. That rate, presented by the state as a seven-day average, has jumped above its previous high of about 14% in recent days, ticking down to 13.58% on Tuesday. That is still above the 10% threshold that Abbott has long said would be cause for alarm amid the reopening process.

First-time offenders of Abbott’s order will receive a written or verbal warning. Those who violate the order a second time will receive a fine of up to $250. Every subsequent violation is punishable also by a fine of up to $250. The order specifies that no one can get jail time for a violation.

Remember that PolicyLab projection from May that said Harris County would go from 200 cases a day to over 2,000 by now? Thankfully, we’re still not close to that – the ReadyHarris dashboard has mostly shown us in the 600 to 800 cases per day range recently, though I suspect there’s some lag in the data because there’s no reason why this week would be lower than the two previous weeks. Point being, we most certainly could have seen this coming, and we could have done a lot to protect ourselves before this happened. You know, like having mask orders in place all along, and letting local governments have more leeway to control crowd sizes. Note here that Abbott’s order targets outdoor gatherings, but not indoor gatherings. You know, like this one. I don’t understand the logic here, but whatever.

The real question is after all this time and all that bullshit from Republicans like Dan Patrick, how much resistance do you think there will be to this new order? Like, remember when Dan Patrick called Judge Hidalgo’s mask order “the ultimate government overreach”? Also, too, Jared Woodfill and Steven Hotze are suing to basically stop emergency orders, and had previously sued to stop Judge Hidalgo’s mask order, before Abbott overruled it himself. Our state has plenty of people who will perform their rage over being asked to take the health and well-being of their neighbors into consideration. I’m curious, and more than a little afraid, to see how that segment of our population reacts to this. The Current, the Press, and the Dallas Observer have more.

UPDATE: My God, but Dan Crenshaw is a hack.

Hey, how about trying that local control thing again?

Seems like it might be worth a shot to led Mayors and County Judges lead on coronavirus response again, since they’ve done so much better a job of leading than Greg Abbott has.

As Texas grapples with soaring coronavirus cases and hospitalizations, local elected officials in some of the state’s most populous counties are asking Gov. Greg Abbott to roll back business reopenings and allow them to reinstate stay-at-home orders for their communities in an effort to curb the spread of the virus.

Officials in Harris, Bexar, Dallas and Travis counties have either called on or reached out to the governor in recent days, expressing a desire to implement local restrictions for their regions and, in some cases, stressing concerns over hospital capacity.

Stay-at-home orders, which generally direct businesses deemed nonessential to shut down, were implemented to varying degrees by local governments across the state in March before the governor issued a statewide directive at the beginning of April. Abbott’s stay-at-home order expired at the end of April, when he began announcing phased reopenings to the state and forcing local governments to follow his lead. Since then, a number of local officials, many of whom have been critical of Abbott’s reopening timeline, have argued that the jurisdiction to reinstate such directives is no longer in their hands.

“If you are not willing to take these actions on behalf of the state, please roll back your restriction on local leaders being able to take these swift actions to safeguard the health of our communities,” Sam Biscoe, interim Travis County judge, wrote in a letter to Abbott on Monday.

Biscoe asked Abbott “to roll all the way back to Stay Home orders based on worsening circumstances,” further cap business occupancy, mandate masks and ban gatherings of 10 or more people.

Officials in Bexar County also wrote a similar letter to the governor Monday, writing that “the ability to tailor a response and recovery that fits the San Antonio region’s need is vital as we look forward to a healthier future.”

“Our region’s hospital capacity issues and economic circumstances require stronger protocols to contain the spread of this disease,” Bexar County Judge Nelson Wolff and San Antonio Mayor Ron Nirenberg wrote. The two asked Abbott to “restore the ability for the City of San Antonio to take additional local preventative measures, including potential Stay Home/Work Safe restrictions.” They also asked the governor to mandate face coverings when outside a household and “clearer language that strictly limits social gatherings,” among other things.

[…]

Meanwhile, counties and cities across the state have implemented face mask requirements for businesses after Wolff, the Bexar County judge, moved to do so without facing opposition from Abbott. The governor had previously issued an executive order banning local governments from imposing fines or penalties on people who chose not to wear a face mask in public.

Local leaders have also voiced concerns about the testing capacity of large cities. In Travis County, Biscoe explained that because of the “rapidly increasing demand,” they are rationing testing only for people with symptoms. The stress on the system is also making contact tracing efforts more difficult.

“In summary, the rapid increase in cases has outstripped our ability to track, measure, and mitigate the spread of the disease,” Biscoe wrote.

Here’s the Chron story; Mayor Turner has joined the call for this as well. I seriously doubt Abbott will do any of this, because it will serve as an even more stark reminder of his abject failure to lead. But if the worst is still ahead of us, then it’s a choice between taking action now and making it end sooner, or denying reality and letting more people get sick and die. Abbott’s going to have to live with the consequences of his poor decision-making regardless, he may as well choose to do the right thing this time.

Of course, there may be other complications this time around.

The Texas Bar & Nightclub Alliance said it plans to sue the state of Texas over Gov. Greg Abbott’s recent order once again shutting bars across the state.

“Texas Bar and Nightclub Alliance (TBNA) is taking the necessary steps to protect the rights of our members and their employees across the state, who have been unjustly singled out by Governor Abbott,” TBNA president Michael E. Klein said in a statement.

[…]

TBNA said its members want to be allowed to reopen and have the same capacity allowances as restaurants, grocery stores and big-box retailers. It will sue in both state and federal court seeking to override Abbott’s order.

The majority of Texas bars had been adhering to strict guidelines restricting occupancy and ensuring safe serving practices for both customers and employees, TBNA’s Klein said. His take: if restaurants with bar rooms can operate at limited capacity, why can’t actual bars?

“To suggest the public welfare is protected by singling out one specific type of alcoholic beverage license over another is without logic and does not further the aim of protecting the public from COVID,” he added.

Well, one way to cure that disparity would be to order that all of them be closed for all except to go service. We’d also need to extend that waiver that allow restaurants to sell mixed drinks to go, which I’d be fine with. While I understand where the TBNA is coming from, this is Not Helping at a bad time. But then, given how Abbott folded on enforcing his own executive order in the Shelley Luther saga, I get why they thought taking an aggressive stance might work. Eater Austin has more.

UPDATE: Looks like the TBNA has been beaten to the punch:

Hoping to block Gov. Greg Abbott’s Friday decision ordering Texas bars to close due to a rise in coronavirus cases, more than 30 bar owners filed a lawsuit Monday challenging Abbott’s emergency order.

The lawsuit, first reported by the Austin American-Statesman, was filed in Travis County District Court by Jared Woodfill, a Houston attorney who has led previous legal efforts opposing Abbott’s other shutdown orders during the pandemic.

“Why does he continue unilaterally acting like a king?” Woodfill, former chair of the Harris County Republican Party, said of Abbott in an interview. “He’s sentencing bar owners to bankruptcy.”

[…]

In the lawsuit, the bar owners argue that their rights have been “trampled” by Abbott, while “thousands of businesses are on the brink of bankruptcy.”

Abbott on Friday said it “is clear that the rise in cases is largely driven by certain types of activities, including Texans congregating in bars.”

Tee Allen Parker said she is confused. As a bar owner in East Texas, she’s allowed to walk into church or a Walmart but not permitted to host patrons at Machine Shed Bar & Grill.

“I don’t think it’s right that he’s violating our constitutional rights,” Allen Parker, the lead plaintiff in the lawsuit, said Monday in an interview. “The reason I’m speaking up is I don’t like that he can’t be consistent. You lead by example. Everything he’s said he’s walked back. And I’m disappointed in him because I was a big fan of his.”

A copy of this lawsuit is here. I’ll say again, as with all of the other COVID-related lawsuits that Jared Woodfill has had his slimy little hands in, we deserve to have serious questions asked by better people than this. As for Tee Allen Parker, I swear I am sympathetic, but no one actually has a constitutional right to operate a bar. I would suggest that the solution here that prioritizes public health while not punishing businesses like hers that would otherwise bear the cost of that priority is to get another stimulus package passed in Washington. Such a bill has already passed the House, though of course more could be done for the Tee Allen Parkers of the world if we wanted to amend it. Maybe call your Senators and urge them to ask Mitch McConnell to do something that would help? Just a thought.

The pause effect on bars and restaurants

I feel terrible for them, but what could we do at this point?

Ed Noyes was trying to get some shut-eye when he woke up to seven different texts Friday morning.

Three of the five bartenders at his Fort Worth establishment — plus his girlfriend — delivered the news: Malone’s Pub had to shutter immediately under the governor’s orders. His employees wanted reassurances: Would the business survive? Should they file for unemployment? What were his next steps?

“We were just all in shock,” Noyes said.

On Friday morning, Gov. Greg Abbott delivered another economic blow to bars and other places that receive more than 51% of their gross receipts from selling alcohol. The establishments had to shut down by noon after a statewide surge in coronavirus infections officials said was largely driven by activities like congregating bars. There’s no immediate plan for when they’ll be able to reopen.

“The announcement just came out of nowhere,” Noyes said. “When I went to bed last night I thought we’d be open for the weekend, so this really blindsided me.”

Restaurants were ordered to scale back their operations to 50% capacity. And Abbott also banned river-rafting trips. They were his most drastic actions yet to respond to the post-reopening coronavirus surge in Texas.

But bars arguably faced one of the biggest challenges to operating in pandemic. Every tantalizing aspect of the nighttime hotspots — large crowds, prolonged bouts of close contact, mouths constantly open to drink or speak — clash with the health guidelines put in place as COVID-19 ravages the state.

[…]

Last weekend, the Texas Alcoholic Beverage Commission launched “Operation Safe Open” to ensure bars and restaurants were following coronavirus safety rules. As of Wednesday, 17 bars — out of nearly 600 businesses visited by the commission — got their alcohol permits suspended for 30 days.

In some enclaves, residents have complained about staff not wearing masks, social distancing measures not being enforced and tables not being cleaned after use.

“I went with a friend for a quick night out,” Steven Simmons, who lives in Tyler, said of a June 11 visit to a local pub. “Easy to enter the bar, just checked IDs and that was it. No social distancing being enforced, no hand sanitizer anywhere, tables were not cleaned after use or anything. Employees were not wearing a mask at all.”

But in other parts of Texas, including Austin and San Antonio, some bar owners say they’re trying to strike a balance between their livelihoods and business and public safety.

“We joke at the Friendly Spot Ice House that we make a ‘bestie pack,’” said Jody Newman, the owner of the San Antonio hotspot. “The pact is that people ‘friendly’ distance, that they mask up, that they have clean hands and that they be friendly and understand we’re all going through this together.”

Still, since opening during the first week in June, Newman said she’s seen about 30% of the business she would normally get at this time of year.

With Friday’s announcement, Newman said, “thousands and thousands of livelihoods hang in the balance.”

Here’s a local view of this dilemma.

“The whole thing is a mess for everyone. Obviously, we’ll have to adjust again,” said Alli Jarrett, owner of Harold’s Restaurant & Tap Room in the Heights, adding that reducing capacity means she will not be able to bring back workers she had hoped to re-employ. “It’s not just restaurants. It’s every single business – every segment of the population. We’re all in the same boat. It’s just really, really hard.”

[…]

Brian Ching, owner of Pitch 25 in EaDo, fears the worst. “I don’t know if the business will be here in a month, two months,” said Ching, who also is readying another bar, East End Backyard, to open in July. “We were able to get PPE but we’ve burned through it all.”

He is most concerned for his workers, he said. “This time around, being closed with no PPE, we are likely going to have to furlough employees. I feel for all of them. There seems to be no end in sight.”

Bar owner Andy Aweida said he worries what the bar shutdown will mean not just to his staff but to all those in the bar industry.

“We did everything we were asked and did it well. It’s unfair to them and many others. So many people are doing what is needed and playing by the rules,” said Aweida, a partner in the Kirby Group whose bars include Heights Bier Garten, Wooster’s Garden and Holman Draft Hall. “I truly feel horrible for all those amazing employees, staff and many other good, hard-working people this affects.”

Lindsey Rae, who opened Two Headed Bar in Midtown only six months ago, conceded that the first year for any business is the toughest. But the bar closures are catastrophic.

“This is going to be a financial disaster for us,” she said. “We are down 85 percent since the pandemic. All of our revenues are exhausted. We can only afford to operate for about one more month unless Gov. Abbott will give us some gleam of hope.”

Hope, however, seemed fading on Friday for Lukkaew Srasrisuwan, owner of the new Thai restaurant Kin Dee in the Heights. She saw six reservations cancel after the announcement.

“This is going in the wrong direction,” she said. “We are complying with the guidelines. We are a small restaurant and we just opened. This is tough.”

At 75 percent capacity, Kin Dee was “doing OK,” Srasrisuwan said. But not for long. “We can’t sustain at this level for more than one or two months,” she said. “I’ve seen the number of COVID-19 increase so I am not surprised by Gov. Abbott’s announcement but I am worried. We don’t want to lose our staff but I don’t know how to keep operating at this rate.”

For some restaurant owners, Abbott’s pullback was not unexpected.

“It’s about time, to be honest. I thought we reopened too soon,” said Christopher Williams, chef/owner of Lucille’s in the Museum District. “It’s the most responsible thing I’ve heard from (Abbott) in a while.”

Williams said he will be able to weather the capacity reduction because he was able to remain solvent by streamlining his menu, dropping prices, and increasing take-out. “At a time like this everyone needs to take profitability out of the equation. It’s about sustainability.”

George Mickelis, owner of the iconic Cleburne Cafeteria, said he was grateful for Abbott’s decision, and said he would be able to continue staying in business even at 50 percent.

“Obviously, no one wants to return to a complete shutdown and we pray that that is absolutely never necessary again,” Mickelis said. “We are all Texas tough and we will prevail.”

Two things can be true at once. This is a terrible blow to a crucial part of the Texas economy and culture. I’m much more of a restaurant person than a bar person these days, but bars are a key ingredient to neighborhood life, and a vital hang-out place for many people. They also employ a lot of people who’ve just been put back out of work at a time when we don’t know if there will be further federal assistance coming and the state of Texas has gone back to requiring out-of-work people to be actively job searching in order to get unemployment benefits. It’s also the case that we should have been a lot more careful and deliberate in allowing bars to reopen in the first place, precisely because everything about them makes them a prime vector for spreading a disease like COVID-19. I don’t know what else we could have done now, but it’s surely the case there are things we can and should have done differently before now.

Other businesses are now in a similar bind.

In the backyard of her business, Cutloose Hair, salon co-owner Ashley Scroggins watched a livestream Friday morning on her phone. On the screen was an image of Harris County Judge Lina Hidalgo speaking of the risks of COVID-19 to the region.

“Today we find ourselves careening toward a catastrophic and unsustainable situation,” Hidalgo said. “Our current hospitalization rate is on pace to overwhelm the hospitals in the near future.” She called for nonessential workers to stay at home.

Scroggins put down her phone and put on her mask. Then she walked into her salon, shut down the online booking system and began calling upcoming reservations: The salon was closing until cases subsided.

Officials have moved to contain the number of known COVID-19 cases spiking across the state, often through conflicting messages that left businesses attempting to weigh health risks against economic concerns.

While Hidalgo recommended nonessential workers stay home, she no longer had the power to enforce such a plan because Gov. Greg Abbott had superseded it with his own plan to reopen the state. Friday morning, Abbott rolled back portions of that plan — ordering bars and tubing and rafting establishments to suspend services and restaurants to cap dine-in capacity at 50 percent — but maintained other businesses could remain open.

That left salons, restaurants, gyms, offices, retailers and other businesses Friday to decide whether to heed Hidalgo’s call to return to the stay-at-home precautions she had the power to enact in March.

Many, like Cutloose Hair, decided shutting down on-premise operations was the right thing to do.

“It’s not getting better,” Scroggins said of the pandemic. “And the only way we can truly support our city is just to do what they’re asking us to do.”

It’s not an easy choice for many. My company, for which I’ve been working from home since March 6, two weeks before the city shut down, has suspended its plan to start bringing workers back to the office until further notice. I suspect there will be a lot more like this, and there should be. If you can reasonably work from home, there’s no good reason not to.

One possible small bit of hope for the bars and restaurants:

Under current state rules, restaurants and bars can sell beer, wine and liquor, but only in closed containers with their manufacturer’s seal intact.

The organization Margs For Life is lobbying to change that.

Founder Kareem Hajjar, also a partner in the Austin law firm Hajjar Peters LLP, is talking with Texas food and beverage associations to build support for an emergency order to let bars sell mixed drinks in containers that they seal on premises.

“While that work continues today, Margs For Life has evolved into a community of people who are either in the industry or support the industry, where we can share news and events, and help one another be as profitable as possible during this pandemic,” Hajjar told the Current.

Margs for Life’s proposed rule change, proponents say, would help restaurants and bars reduce inventory — and allow some facing dire financial circumstances to stay afloat.

“I’m privileged that I work at a bar that has granted me the ability to do to-go cocktail kits… But bars and restaurants would benefit from FULL to-go kits,” said David Naylor, a bartender at San Antonio craft-cocktail bar The Modernist, via a Facebook post. “Manhattans expertly built, Negronis that don’t require you to amass a stocked bar… ALL these are possible if [Gov. Abbott] would allow it.”

Abbott has expressed support for this idea.

Abbott originally signed a waiver March 18 allowing to-go alcohol sales, in an effort to support struggling restaurants after they closed their dining areas. The waiver was originally to last until May 1, but it was extended indefinitely. Abbott teased that this change could be permanent, tweeting at the time, “From what I hear from Texans, we may just let this keep on going forever.”

Abbott again tweeted late Saturday that he supports the idea of extending his temporary waiver. State Rep. Tan Parker, R-Flower Mound, replied, saying that he will file a bill in the upcoming legislative session to make it happen, also advocating to allow restaurants to continue selling bulk retail food items to go.

[…]

The Texas Restaurant Association submitted a proposal Thursday evening to Abbott’s office, asking to expand the waiver to also allow mixed drinks with liquor to be prepared, resealed and sold.

Cathy Lippincott, owner of Güero’s Taco Bar in Austin, said its margarita to-go kits were very popular during the beginning of the restaurant shutdowns, but as dining rooms began to reopen, sales dwindled. Now, days could go by without the restaurant selling a single kit.

Under the Texas Alcoholic Beverage Commission guidelines, restaurants can only serve liquor in manufacturer-sealed bottles and with the purchase of food. For several restaurants, including Güero, this means their drinks are served in do-it-yourself kits, where customers mix the ingredients and liquor together.

Lippincott believes that if mixed drinks were also allowed to be served to go, she could see that being a popular option.

I support this as well, and any action that can be taken now to achieve this should be taken. And then, when the Lege convenes in January, we should not only pass a law to make this permanent, but also revisit all of our archaic and anti-competitive laws that govern the manufacture and sale of beer, wine, and liquor. You know what I’m talking about. Let’s please at least let this terrible pandemic be a catalyst for something good.

Put a pause on that reopening

At this point, we had no other choice.

Gov. Greg Abbott on Friday took his most drastic action yet to respond to the post-reopening coronavirus surge in Texas, shutting bars back down and scaling back restaurant capacity to 50%.

He also shut down river-rafting trips and banned outdoor gatherings of over 100 people unless local officials approve.

“At this time, it is clear that the rise in cases is largely driven by certain types of activities, including Texans congregating in bars,” Abbott said in a news release. “The actions in this executive order are essential to our mission to swiftly contain this virus and protect public health.”

Bars most close at noon Friday, and the reduction in restaurant capacity takes effect Monday. Before Abbott’s announcement Friday, bars were able to operate at 50% capacity and restaurants at 75% capacity.

As for outdoor gatherings, Abbott’s decision Friday represents his second adjustment in that category this week. Abbott on Tuesday gave local governments the choice to place restrictions on outdoor gatherings of over 100 people after previously setting the threshold at over 500 people. Now outdoor gatherings of over 100 people are prohibited unless local officials explicitly approve of them.

Abbott’s actions Friday were his first significant moves to reverse the reopening process that he has led since late April. He said Monday that shutting down the state again is a last resort, but the situation has been worsening quickly.

I can’t emphasize enough that none of this had to happen. Greg Abbott laid out four metrics for reopening when he first lifted the statewide stay-at-home order: Declining daily case rates, positive test percentages below a certain level (I forget what exactly, maybe seven percent), three thousand contact tracers hired by the state, and sufficient hospital capacity. None of the first three were ever met, even at the beginning, and the predictable result is that now the fourth one is no longer being met. We could have driven the reopening by the metrics, instead of saying “on this date we’ll roll back these things and allow these things to resume”, but we didn’t. Greg Abbott made that decision. What is happening now is on him.

And so, here in Harris County, where our leaders’ efforts to take this pandemic seriously were entirely undercut by Greg Abbott, we are paying the price.

Harris County Judge Lina Hidalgo on Friday moved the county to the worst threat level, calling for a return to the stay-at-home conditions of March and April, as COVID-19 hospitalizations continue to spike.

She also banned outdoor gatherings of more than 100 people in unincorporated Harris County, while urging mayors to do the same in their cities.

Hidalgo described in dire terms the danger the pandemic currently poses, and said the county is at greater risk than at any other time since the outbreak began here in March.

“Today we find ourselves careening toward a catastrophic and unsustainable situation,” Hidalgo said. “Our current hospitalization rate is on pace to overwhelm the hospitals in the near future.”

Her remarks were a rebuke of Gov. Greg Abbott’s phased reopening strategy, which she said allowed Texans to resume normal life before they were safe. They also contradicted the rosy picture Texas Medical Center executives painted a day earlier of the system’s ICU capacity.

Hidalgo unsuccessfully lobbied the governor this week for the power to issue more restrictions, her office confirmed. Abbott’s refusal to let local officials again issue mandatory stay-at-home orders leaves Harris County “with one hand tied behind our back,” she said.

[…]

Though she lacks the power to require compliance, Hidalgo implored all county residents to follow the same rules as her stay-at-home order in March and April. That means residents should stay home except for essential errands and appointments, work from home if possible, wear a mask in public and otherwise avoid contact with other people.

Only a collective change in behavior can reverse the accelerating trend of COVID here, Hidalgo said. The alternative, she warned, is grim.

“If we don’t act now, we’ll be in a crisis,” she said. “If we don’t stay home now, we’ll have to stay home when there are images of hospital beds in hallways.”

Hidalgo and Dr. Umair Shah, the county’s health director, offered no concrete timeline for how long restrictions would be needed. The county judge noted that in some other states, lockdowns of up to three months were needed to bring the virus under control.

A tripling of cases and hospitalizations since Memorial Day have placed intense pressure on state and local leaders to act. With Abbott’s blessing, Hidalgo and other local leaders have issued mandatory mask orders since last week, mandating businesses to require their customers wear facial coverings.

The governor effectively gutted Hidalgo’s original order requiring residents to wear masks at the end of April by preventing any punishments from being levied against violators. Enforcement never was the point, Hidalgo said Friday, but she blamed the governor for signaling to residents that mask-wearing was unimportant.

See here for the background. We can’t know what shape Harris County would be in now if Judge Hidalgo had been allowed to make her own decisions instead of being overruled by Abbott. But it’s hard to say we’d be any worse off than we are now.

Of course, some people still think it’s all sunshine and puppies up in here.

Texas Lt. Gov. Dan Patrick went on national television to declare Texas is not running out of intensive care hospital beds and to assure viewers that the state is “not stepping backward” in re-opening businesses.

Speaking on Fox News Channel on Thursday night, Patrick acknowledged new COVID-19 cases are increasing in Texas, but assured viewers it was expected.

“We have seen a spike in cases. We expected that,” Patrick said pointing to increased testing. “Our hospitalizations are up, but here’s the good news, the good news is we’re not seeing it translate to the ICU unit or into fatalities.”

You can read the rest if you want, but really, what you need to do is CLAP LOUDER!

There is one piece of good news:

The Trump administration reversed itself and extended support for testing sites in Texas on Friday.

The extension followed a public outcry after TPM revealed on Tuesday that federal help was set to end on June 30.

Health and Human Services Assistant Secretary Brett Giroir said in a statement that his agency would support five testing sites in Texas for two weeks longer than initially planned.

Sens. Ted Cruz (R-TX) and John Cornyn (R-TX) sent a letter to HHS Secretary Alex Azar on Thursday requesting an extension of support for the free, drive-through testing sites.

Local officials in Texas have spent weeks clamoring for the sites to be extended. The move comes as cases and hospitalizations in the state have skyrocketed, and as Gov. Greg Abbott (R) has paused the state’s reopening.

“Federal public health officials have been in continuous contact with our public health leaders in Texas, and after receiving yesterday’s request for an extension, have agreed to extend support for five Community-Based Testing Sites in Texas,” Giroir said in a statement. “We will continue to closely monitor COVID-19 diagnoses and assess the need for further federal support of these sites as we approach the extension date.”

See here for the background. It’s two weeks’ worth of good news, which isn’t enough but is better than nothing. Now let’s extend that out to infinity, or whenever we don’t need testing at scale, whichever comes first.

One more thing, just to hammer home the “it didn’t have to be this way” point:

Texas is also a wee bit larger than Taiwan, with less density and public transportation. They’re already playing baseball in Taiwan, have been for a few weeks now. I’m just saying.

Have we gone from “concerned” to “alarmed” yet?

We’re getting there.

With cases of the coronavirus surging to record levels in Texas, Gov. Greg Abbott recommended Tuesday that Texans stay home as much as possible and for the first time moved to allow the tightening of two kinds of restrictions that had been eased under his reopening plan.

“We want to make sure that everyone reinforces the best safe practices of wearing a mask, hand sanitization, maintaining safe distance, but importantly, because the spread is so rampant right now, there’s never a reason for you to have to leave your home,” Abbott said during an early-afternoon interview with KBTX-TV in Bryan. “Unless you do need to go out, the safest place for you is at your home.”

Within hours, Abbott made two announcements to alter the reopening process. He scaled back a previous statewide order and gave local officials the ability to place restrictions on outdoor gatherings of over 100 people, a threshold he originally set at 500 people. And Abbott said the state would enact mandatory health standards for child care centers after prior rules became voluntary earlier this month.

The moves came a day after Abbott said at a news conference that the coronavirus was spreading at an “unacceptable rate” but did not offer any new policies to stem the virus’ spread. Instead, he reiterated long-established guidelines such as social distancing and pointed out that the state was increasingly cracking down on businesses that allow large crowds. At the news conference, Abbott also encouraged Texans to stay home, albeit in less explicit terms than he did in the KBTX interview.

The Monday news conference marked a newly urgent tone by Abbott, which he continued into Tuesday. During TV interviews in the noon hour, he made the somewhat unusual move of getting ahead of the state’s daily announcement of new coronavirus cases, bracing audiences for a new record high exceeding 5,000 — a big increase over the last peak of 4,430 on Saturday.

Before sharing the new record figure with KBTX, Abbott said he was trying to “make sure people around the state really comprehend the magnitude of the challenge we’re dealing with.”

By the end of the afternoon, the state Department of State Health Services had reported the precise number: 5,489 new cases.

At the same time, two metrics that Abbott has prioritized — hospitalization levels and positivity rate — continued to trend in the wrong direction. Hospitalizations reached 4,092, marking the 12th straight day of a new peak. The positivity rate — or the ratio of cases to tests, presented by the state as a seven-day average — reached 9.76%, back to the level it was at in mid-April.

It’s bad, y’all.

The Texas Medical Center’s intensive care capacity could be exceeded as soon as Thursday because of the surge in COVID-19 patients, the hospital system projects.

A TMC model also predicts ICU surge capacity — extra, temporary beds and equipment used in emergencies — could be exceeded as soon as July 6 if the steep rate of new COVID hospitalizations continues, the most aggressive modeling to date.

Eleven leaders of the system’s member hospitals and medical schools said in a joint statement that COVID-related admissions were increasing at an “alarming rate,” stretching the capacity of ICU units. Texas Children’s Hospital this week began admitting adult patients to handle the surge.

“If this trend continues, our hospital system capacity will become overwhelmed, leading us to make difficult choices of delaying much-needed non-COVID care to accommodate a greater number of COVID patients,” the group wrote.

The leaders urged residents to stay home when possible, practice social distancing and wear masks.

Stay home.

Houston employers ought to send workers back home from the office if possible due to spiking coronavirus cases in the region, the region’s leading business group said Wednesday.

Bob Harvey, the president and CEO of the Greater Houston Partnership, said in a statement that Houston COVID-19 cases are reaching a “critical point” and that employers need to do their part in helping to curb what he called an “alarming trajectory.”

“We encourage employers to strongly consider returning to a work-from-home model,” Harvey said. “To keep our Houston economy moving forward, we must all do our part.”

On Tuesday, Gov. Greg Abbott asked Texans to voluntarily stay home if possible.

We’re basically back where we were in March and April, with county governments still trying to figure out what to do without clear direction from the state and a complete abdication of responsibility from the White House. The Texas Restaurant Association is calling for a statewide face mask mandate, a thing that is very much necessary now but could have done so much more good a month ago when we were in this mad stupid rush to reopen everything. Imagine if we could have been able to reopen without thousands of people getting sick every day? Too bad, that’s not how it went. What we’re doing now – and what we’re still not doing because Greg Abbott still isn’t doing it – is definitely too late. If we’re very lucky, maybe it won’t be too little. The Chron has more.

UPDATE: Oh, the irony.

Visitors from Texas will soon have to quarantine for 14 days if they travel to New York, New Jersey, or Connecticut, according to the three states’ governors, who also took aim at Texas’ handling of the coronavirus outbreak on Wednesday.

The move comes as coronavirus cases and hospitalizations hit record highs in Texas, surpassing 5,000 new cases in a single day on Tuesday and making the state one of the country’s coronavirus hotspots.

Gov. Andrew Cuomo of New York, Gov. Phil Murphy of New Jersey, and Gov. Ned Lamont of Connecticut, all Democrats, held a joint press conference Wednesday to announce the policy, which will affect nine states whose infection rates have met thresholds indicating “significant community spread,” including Texas, Arizona, and Florida, according to reports.

“We need to do things right inside the four walls in our respective states,” Murphy told reporters.

The restriction on Texas travelers marks a notable shift in which states are being flagged nationwide for the most alarming increases of coronavirus cases. Earlier in the pandemic, Texas touted comparatively low hospitalization rates and was pointing the finger at other states where the virus was raging.

In late March, Texas imposed a 14-day quarantine on travelers from New York, New Jersey, Connecticut, Washington, and California – some of the early coronavirus hotspots. The state also mandated quarantines for those driving or flying to Texas from neighboring Louisiana as well as flying from Miami, Atlanta, Detroit, and Chicago. Those orders have since been lifted.

Abbott did not respond to a request for a comment for this story, but that’s all right. We know what he’d have said: He’s “concerned, but not alarmed”. You’re welcome.

Can we make it past July?

That’s when it looks like we’ll hit the peak of the pandemic here. And it could be ugly.

A surge in COVID-19 cases since Memorial Day could set the Houston area on track for a peak of 2,000 daily hospitalizations by mid-July, according to a model from a Baylor College of Medicine epidemiologist.

The region’s intensive care units would be overwhelmed by that number of patients, a nearly 50 percent increase from current levels, though thousands of general hospital beds remain available, said Dr. Chris Amos.

City of Houston Health Authority David Persse said several area hospitals already are at or over capacity, and warned that shifting patients to facilities in other cities, a common practice in natural disasters, may no longer be possible.

“The difference this time is the hurricane, if you will, is infecting the entire state,” Persse said.

With government restrictions on business and travel removed, the epidemiologist and hospital executives from the Texas Medical Center said the only hope for the Houston area to avoid that outcome is for residents to practice social distancing, wear masks and avoid unnecessary contact with others.

Too many residents, they said, appear to have mistaken the end of Harris County’s stay-at-home order as a cue to resume normal life, while the virus poses a greater threat today than it did on May 1.

“The alarming situation could be that we have rampant COVID spreading throughout our society,” Houston Methodist CEO Dr. Marc Boom said. “If we don’t take control, it takes control for us.”

See here for some background. Hey, remember that May projection from the PolicyLab at Children’s Hospital of Philadelphia that was based on social distancing data? It suggested we would get up to over 2,000 hospitalizations per day, right around where we seem to be headed now. Their graph had us hitting that mark in early June, while Baylor is suggesting July. Never would have been much better than late, but here we are anyway.

Elected officials and their public health experts are grappling with the idea that Harris County may have squandered much of this spring’s success in slowing the growth of the virus during the six-week stay-home period.

The shutdown dealt severe damage to the economy, including half a million lost jobs. Since Gov. Greg Abbott began reopening the state in May, however, the Houston area has set new records for cases and hospitalizations.

“All of the good work that we did, shutting down, closing conferences and conventions … we’re wiping away the success that we collectively achieved, and the sacrifices that people made in March, April and in May,” Houston Mayor Sylvester Turner said.

The mayor lamented that local officials have had little authority to issue restrictions since Abbott has implemented his phased reopening plan, and urged residents, at a minimum, to follow County Judge Lina Hidalgo’s mask order, which went into effect Monday. The order mandates that Harris County businesses require their customers to wear face coverings.

Abbott defended his strategy during a news conference in Austin, saying it achieved its primary goal of preventing hospitals from being overrun. He said the rate of new cases across the state was unacceptable, however.

See here for more on that mask order, which we could have had weeks ago had it not been for Abbott’s ridiculous, cowardly refusal to talk straight. This is all on you, Abbott. I hope the knowledge of your craven behavior haunts you for the rest of your days. I hope even more it’s what finally forces you out of office in 2022. May we all end up being overly panicked about this, because if not this is really going to suck. The Chron editorial board has more.

How bad is it going to get in Houston?

I’m worried, y’all.

The number of COVID-19 hospitalizations in Texas continued to reach record highs over the weekend while new cases also climbed in the Houston area.

The new figures come as County Judge Lina Hidalgo and leaders in other urbanized counties have issued orders mandating that businesses require customers wear face masks. Hidalgo’s order goes into effect Monday, though the latest local trends indicate masks “won’t be enough,” said vaccine researcher Dr. Peter Hotez, a professor and dean of the National School of Tropical Medicine at Baylor College of Medicine.

“My observations if this trajectory persists: 1) Houston would become the worst affected city in the US, maybe rival what we’re seeing now in Brazil 2) The masks = good 1st step but simply won’t be enough 3) We would need to proceed to red alert,” Hotez said Saturday on Twitter.

[…]

Texas on Sunday reported a 5 percent increase in hospitalizations, bringing the cumulative total to a record 3,409 patients — a figure that has more than doubled since Memorial Day. Also on Sunday, a batch of 2,726 new cases became the sixth-highest single-day increase in Texas, according to a Houston Chronicle analysis. Over the previous two days, the state reported its largest and third-largest single day increases, respectively.

The Houston region has experienced a similar trend with rising case figures. Houston Chronicle data shows that Harris County is averaging 610 new cases per day over the last week, compared to 313 new cases per day the previous week.

That’s also more than triple where we were in May. The new face mask order should help, but we may need to go into lockdown again. What are the odds Greg Abbott will acknowledge that? Even if he did, would people be willing to go along with it? This was the problem with “reopening” when we did and the way we did. We didn’t have the pandemic under control. We were moving in the right direction, but we weren’t there yet. And now we’re worse off than we were before. Who could have seen this coming?

There’s also this:

Hidalgo noted an increase in county hospitalizations last week when she issued her face covering order. Leaders of other Houston area counties continue to stay away from similar measures, despite concern from local health officials.

“Galveston County will not be issuing such an order,” Galveston County Judge Mark Henry said Sunday in a lengthy Facebook post. “Individuals and businesses need to take personal responsibility in following the recommended best practices in slowing the spread of COVID-19… If you find that a business doesn’t appear to have taken steps that have been recommended in Governor Abbott’s reopening plan, then don’t reward them by doing business with them. It’s that simple.”

Galveston County reported its highest single-day case increase on Saturday with 142 new cases, followed by 83 new cases on Sunday. More than half of its new cases have been reported after June 1, health officials say.

In a news release, the Galveston County Health Department said the “alarming” increase is related to a lack of social distancing, not wearing face coverings and spreading the virus in families and households.

“Galveston County is at a critical juncture,” the release said, adding, “The health district strongly recommends Galveston County businesses require patrons and employees to wear a face covering, and to make face coverings available for those customers who do not have one.”

Brazoria County also has seen a major uptick in new cases, reporting three of its largest single-day increases over the last four days. Health officials reported 52 new cases on Sunday, bringing the overall total there to 1,215.

Brazoria County Judge Matt Sebesta as of Sunday had not issued a mandatory mask order for businesses.

We went through this back in March, too, where suburban areas around big urban centers had a very different response to the early stages of the pandemic. Please tell me we’ve learned something since then.

But don’t worry. Greg Abbott is right on it.

Gov. Greg Abbott on Monday struck a newly urgent tone about rising coronavirus numbers in Texas but said “closing down Texas again will always be the last option.”

“To state the obvious, COVID-19 is now spreading at an unacceptable rate in Texas and it must be corralled,” Abbott said during a news conference at the Texas Capitol in Austin.

However, he stopped short of introducing any new policies or pulling back on the reopening of Texas businesses, instead emphasizing long-established voluntary guidelines encouraging people to stay home if they can, use hand sanitizer, keep six feet of distance with others and, if they cannot, wear a mask. He also promised Texas has strategies to address the rising numbers “without having to return to stay-at-home policies.”

Those strategies include stepping up enforcement of current guidelines in places like bars where large crowds have gathered, “surging testing in areas that may be hotspots” and working with hospitals to ensure they have capacity for coronavirus patients. He continued to describe hospital capacity as “abundant.”

At the same time, Abbott held open the possibility that Texans could see new restrictions to get the virus under control. He said so while speaking in front of three poster boards showing the rapid rise of daily new cases, hospitalizations and the positivity rate, or the ratio of confirmed cases to tests.

“In each of these three categories, there’s been pretty much a doubling of the numbers in those three categories,” Abbott said. “If we were to experience another doubling of those numbers over the next month, that would mean we are in an urgent situation where tougher actions will be required.”

[…]

At the same time, Abbott continued to resist the idea of a statewide mask mandate, saying there needs to be flexibility for different parts of the vast state. He has restricted local governments from mandating individuals wear masks but recently clarified that they can order business to requires customers to wear masks.

Whatever. You had your chance to allow local governments to enforce your own orders, and you blew it. We’re still cleaning up after that. See Zeach Despart on Twitter for more.

Our wishy-washy Governor

It’s all about evading responsibility. At least now it’s starting to become clear to people.

Counties and cities across Texas swiftly followed Bexar County Judge Nelson Wolff’s lead this week after he ordered businesses — without opposition from Gov. Greg Abbott — to require employees and customers wear face masks when social distancing is not possible.

Although the governor issued an executive order June 3 banning local governments from imposing fines or criminal penalties on people who don’t wear masks in public, Abbott on Wednesday commended Wolff for putting the onus for face masks on businesses. In an interview with KWTX, Abbott said the local official “finally figured that out.”

“Government cannot require individuals to wear masks,” he added. “Local governments can require stores and business to require masks. That’s what was authorized in my plan.”

But those assertions have brought quick criticism from local officials — and lawmakers from within Abbott’s own party.

City and county officials, some of whom signed on to a letter asking for the power to mandate face masks, fault Abbott for two things. They say he should have explicitly told them that businesses could require face masks. And, they say, his lack of a statewide mandate even as he emphasized the importance of wearing a mask prompted some Texans to let their guards down against taking precautions to stop the virus’ spread.

A spokesman for the governor did not immediately respond to a request for comment Friday.

Abbott’s comments about Wolff figuring out what the governor’s order allows came the same week that Texas continuously set new records for coronavirus infections and hospitalizations. More than 3,100 Texans were hospitalized with COVID-19 on Friday, the eighth day in a row that a new record for hospitalizations was set. And the state reported more than 3,000 new infections a day three times this week, after previously never exceeding that threshold. Those infections and hospitalizations come several weeks after Abbott allowed businesses to begin reopening.

“Our best tool for fighting this pandemic is public trust, and the work that we have to do and putting the public health guidance out front, so that people have the information that they need to make good decisions for their businesses, for themselves and their families is critical,” San Antonio Mayor Ron Nirenberg said Friday. “When the orders at any level of government are so obtuse that our partners can’t figure them out, it’s not to be celebrated.”

[…]

State Rep. Erin Zwiener believes the reason Abbott allowed for Bexar’s order to go through is because of the rising number in coronavirus cases and hospitalizations. She said she doubts state officials would have allowed the order a month ago.

“Either the attorney general would have ruled it didn’t line up with his order or Governor Abbott would have adjusted his order to get rid of that loophole,” she said.

Abbott initially appeared largely amenable to cities and counties interpreting his earlier directives however they saw fit, deciding when to arrest or fine violators, warn them verbally, leave informational flyers or do nothing at all. Then, he changed his mind and, along with the state’s other Republican leaders, blasted local officials in Dallas and Houston for what they called overzealous enforcement of COVID-19 regulations.

“Ideas were being discussed, people were looking for loopholes, the issue is that the governor created a situation where locals felt like they had to be cautious to avoid being cracked down upon,” Zwiener said. “We wasted the benefit we got from our shut down by not having well-established practices in our businesses that they opened, and not clearly communicating to the Texas public the behavioral modifications they needed to make.”

At an April press conference where he talked about plans for reopening the state, Abbott took away local officials’ ability to issue fines for violating coronavirus-related orders, adding that his executive order “supersedes local orders, with regard to any type of fine or penalty for anyone not wearing a mask.”

You know the story. It’s hard for me to say which was more craven, the Shelley Luther flip-flop, or the “you solved my riddle” baloney. I get the need to reopen, and I understand that different parts of the state were affected in different ways. But that more than anything argues for letting local leaders have more autonomy, because the places that are being hardest hit now are the ones that had been able to get things under control initially, but were completely hamstrung by Abbott’s usurping of their authority. I’ve been asking for weeks what we were going to do if the numbers started to get bad. Now we know, but is it too little too late? If it is, we know where the blame lies.

Hidalgo issues new mask order

Greg Abbott said we could, so there.

Harris County Judge Lina Hidalgo issued an order Friday mandating that businesses require customers to wear masks, her latest effort to slow the spread of the novel coronavirus.

She and other county leaders increasingly are worried about a surge in COVID-19 cases since Memorial Day, which has resulted in eight straight days of record hospitalizations in Harris County. Hidalgo framed the mask rules as a common-sense complement to social distancing that empowers business to protect patrons.

“The idea is to see this as no shirt, no shoes, no mask, no service,” Hidalgo said at a news conference. “It gives people an understanding of what to expect when they go into an establishment.”

Her order hews closely to face-covering rules issued by Bexar County Judge Nelson Wolff earlier this week and will go into effect Monday. It expires June 30, though Hidalgo hinted she likely would seek an extension.

It requires all customers 10 and older to wear a face covering inside a businesses; employees who work at a business where distancing from others is impossible also are required to wear a mask. Exceptions include eating at a restaurant, pumping gas, visiting a bank or anytime wearing a mask poses a health risk.

[…]

Mayor Sylvester Turner was one of nine executives of Texas cities to sign a letter to Abbott on Tuesday urging the governor to order residents to wear masks or let local leaders do so themselves. Turner said he would direct police to hand out masks instead of tickets, as they had done in April.

Turner praised Hidalgo’s order and noted the troubling rise in cases, including a new batch of 972 infections in Houston alone he announced from the lectern. Most of those were the results of tests conducted June 5 to June 10, he said.

“Toward the end of April and the first couple weeks of May, we flattened the curve and the numbers were headed in the right direction,” Turner said. “Now, the numbers are starting to tick up, and so we’re encouraging people, at the very minimum, to mask up.”

Greater Houston Partnership CEO Bob Harvey joined the leaders to announce that the business community supported the mask rules.

See here and here for the background. Mayor Turner has fully endorsed Judge Hidalgo’s order. Dallas County has done the same. And just to put a little bit of pressure back on Abbott, the Texas Restaurant Association has called for a statewide mask order. I don’t see that happening, as we are all too busy being call on to clap harder, but we’ll see how it goes.

By the way, remember the model that suggested the new case count for COVID-19 could climb from about 200 a day, which it was a month ago, to over 2,000 a day? The good news is that we’re still nowhere close to that. Looking at the Harris County Public Health data, we’re at roughly double where we were in mid-May, which isn’t great but is far from an order of magnitude increase. There is some lag built into these numbers, though, so we’ll need to check back in another two weeks, and then again after that to see if the mask order, which goes into effect on Monday, made a difference. We know it can’t hurt. Stay safe and wear your mask, people.

From the “Live by the leaked audio, die by the leaked audio” department

Oh, the irony.

Two staffers for the hardline conservative group Empower Texans have been caught on an audio recording disparaging Gov. Greg Abbott with profanity and joking about his wheelchair use.

Upon the comments surfacing Friday morning, Abbott’s office and Lt. Gov. Dan Patrick denounced them and Empower Texans said the staffers were “suspended from all public activities with the organization immediately.”

The comments came on an unedited version of the group’s podcast, Texas Scorecard Radio, featuring Empower Texans’ vice president, Cary Cheshire, and general counsel, Tony McDonald. The audio was published — apparently inadvertently — Thursday. The unedited version was replaced with an edited episode later in the day.

After the show ends in the unedited version, McDonald and Cheshire laugh about references they made to Abbott that could be perceived as highlighting the fact he has used a wheelchair since being partially paralyzed in a 1984 accident.

“I feel like before there was a switch I could flip to avoid that, and I’m just so frustrated that I’ve flipped it off,” Cheshire says. “He’s such a revolting piece of shit.”

The two had been venting over Abbott’s recent comments allowing local officials to order businesses to require customers to wear masks amid the coronavirus pandemic. The governor’s approval of such policies came after a stretch of confusion over what exactly local officials could do to mandate regarding mask use under his statewide orders. In clarifying the statewide mask rules earlier this week, Abbott said Bexar County Judge Nelson Wolff had “finally figured” out what was allowed.

The sentiments by Cheshire and McDonald are not dissimilar from criticism of Abbott they have lodged publicly, though without profanity and reference to his disability. Empower Texans and some other hard-right activists have been generally critical of Abbott lately for ceding too much power to big-city Democratic leaders to fight the virus.

“It’s like, I have created this riddle for you and you have figured out how to fuck your citizens with it — ‘Great job, I’m with you,'” Cheshire says in the unedited podcast while talking about Abbott’s mask confusion. “And it’s like, you’re an awful piece of shit.”

McDonald adds that Abbott “created a shitty policy that’s vague because he wanted to avoid accountability.” As for Abbott’s eventual clarification that counties and cities can require businesses to mandate mask wearing, McDonald says, “Well, just like, fuckin’ say it. Don’t clown around. ‘You read between the lines.’ Well, fuck you.”

It was the Quorum Report that broke the story, though of course much of what they wrote is behind their paywall. You can hear the full audio here. Somewhere, I figure future ex-Speaker Dennis Bonnen is grimly enjoying a double Scotch and a cigarette.

Let’s make three points here. One of course is that lots of people, myself included, have criticized Abbott’s ridiculous “riddle me this” statement as well. He’s been doing his best to dodge accountability for his own actions, and non-actions, all along, and he deserves all the brickbats he’s gotten for it. The issue here, in addition to their awful ableist slurs, is that Empower Texans themselves, from their wingnut billionaire sugar daddy Tim Dunn to their loathsome leader Michael Quinn Sullivan on down to their staffers, are the epitome of shitty politics in Texas. (Note that while Sullivan made a typically pious statement about how “unacceptable” this was and how “heartbroken” it made him, moneybags Dunn has not said anything yet.) You don’t have to believe me about this. Go read what a former staffer had to say, or go have a look at some of Cary Cheshire’s tweets. These guys are the worst.

Two, they’re also huge supporters of many elected Republicans, including the likes of Dan Patrick, who did a little pearl clutching of his own. I’m sure he went right back to counting all the money he’s gotten from them in the past.

And on that note, credit where credit is due:

Pretty sure no one, least of all Dollar Bill Dan, will be handing their donations back to Empower Texans. The Chron has more.

Masks up

We solved Greg Abbott’s riddle, so all is well now, right?

With Gov. Greg Abbott’s apparent blessing, Bexar and Hidalgo counties have imposed a new mask rule for local businesses, saying they must require employees and customers to wear masks when social distancing isn’t possible. The move appears to open a new way for local officials to require mask use in certain public spaces after Abbott stymied prior efforts by local officials to put the onus on residents.

Bexar County Judge Nelson Wolff’s and Hidalgo County Judge Richard Cortez’s orders comes after Abbott issued an executive order June 3 banning local governments from imposing fines or criminal penalties on people who don’t wear masks in public.

Wolff’s order states that, starting Monday and running through the end of the month, businesses in Bexar County must require face masks “where six feet of separation is not feasible” before the business risks facing a fine of up to $1,000. Cortez’s order states businesses in Hidalgo County will risk being fined starting Saturday and will remain in effect until further notice.

The orders also state that, consistent with Abbott’s executive order, “no civil or criminal penalty will be imposed on individuals for failure to wear a face covering.” Later in the day, San Antonio Mayor Ron Nirenberg signed an update to his emergency health order to express support for and adopt Wolff’s order, saying that, as the number of coronavirus cases increase in the city, “masks are our best line of defense.”

[…]

“I’m pleased that the Governor has changed his mind. I’m asking our county lawyers and business leaders to look at this and plan to make a proposal for the Commissioner’s Court to look at very soon,” Dallas County Judge Clay Jenkins said in a statement, who said he’s already looking into whether he’ll follow suit.

A spokesperson for Harris County Judge Lina Hidalgo said they are checking with the county attorney’s office on Wolff’s order, adding that “we’re not any safer today than we were in March. There is no vaccine. No cure. We remain very concerned about the trajectory of hospital admissions.”

Texas Attorney General Ken Paxton’s office had already warned officials in big cities, including San Antonio, to roll back “unlawful” local emergency orders that featured stricter coronavirus restrictions than those of the state, while hinting of lawsuits if they do not. Paxton’s office declined to comment on Wolff’s order Wednesday.

See here for some background. The city of Austin has already issued a similar order, and I figure it’s just a matter of time before Harris and Dallas and a bunch of other places follow suit. I feel confident saying that the wingnut contingent will not take this lying down, so the question is whether they fight back via Hotze lawsuit, or do actual elected Republicans with their own power and ambition like Ken Paxton get involved? And when they do, what inventive technique will Abbott find to shift the blame to someone else this time?

Riddle me this, Governor

Parody is dead.

Bexar County Judge Nelson Wolff issued a new executive order Wednesday that mandates face coverings for the general public and directs businesses to require employees and customers to wear them in situations where social distancing is not feasible.

The order requires all “commercial entities” in Bexar County to implement a health and safety policy that includes mandatory face coverings in situations involving close contact with others. Failure to implement the policy by Monday could result in a fine up to $1,000, according to the order.

Wolff’s order, which comes amid a surge in positive coronavirus cases and patients hospitalized with COVID-19, seems to clash with that of Gov. Greg Abbott, who said in April that no local jurisdictions would be able to fine or jail people for not wearing a face covering. Download Wolff’s order here.

“Judge Wolff’s order is not inconsistent with the Governor’s executive order,” John Wittman, a spokesman for Abbott, told the Texas Tribune. “Our office urges officials and the public to adopt and follow the health protocols for businesses established by doctors” that are available online.

Under the new order, an individual couldn’t be fined for failure to wear a mask, but businesses can be penalized for failing to implement face-covering policies. Though the County order is “pushing the legal bounds” against the state order, Bexar County attorneys say they can defend it in court, Wolff said at a news conference.

“We cannot rely on the state to do what needs to be done,” said Bexar County District Attorney Joe Gonzales, who joined Wolff at the news conference.

In an interview with KWTX-TV in Waco, Abbott said Wolff has “finally figured” out what locals can do with masks under statewide order: “Government cannot require individuals to wear masks. However, pursuant to my plan, local governments can require stores and business to require masks.”

“Local governments can require stores and business to require masks. That’s what was authorized in my plan,” Abbott added. “Businesses … they’ve always had the opportunity and the ability, just like they can require people to wear shoes and shirts, these businesses can require people to wear face masks if they come into their businesses. Now local officials are just now realizing that that was authorized.”

State democrats took issue with Abbott’s lack of clarity.

“If only the Governor had been clear all along that his executive order was a riddle for counties and cities to solve,” Rep. Lloyd Doggett (D-San Antonio) said in an email to the Rivard Report. “Earlier today, I urged him to unshackle local leaders by restoring their authority to set rules essential to protecting public health; I hope he continues on this path.”

Apparently, Greg Abbott has been channeling the Sphinx all this time. Who knew? Maybe there’s also some buried treasure out there, waiting for someone to decipher all the clues in his public statements. I can’t do this justice, so let me outsource some of the snark to a conservative talk radio host:

Perhaps if the original executive order – you know, the one Abbott soon after abandoned in a panic following the outcry from disaffected mullet-wearers – had included the instructions to click our heels together three times, we might have figured it out sooner. Lesson learned for the future, I suppose.

Anyway. Now that we have apparently leveled up, Harris County Judge Lina Hidalgo is considering a similar order, which I hope she follows through on. I for one am never going to get over this particular piece of idiocy.

Whistling past the ICU

Clap louder!

Gov. Greg Abbott and top Texas health officials on Tuesday responded to growing alarm over hospitals now swelling with coronavirus patients, assuring there is still plenty of space available even as some facilities have neared or surpassed capacity.

Speaking on yet another day of record high hospitalizations from the pandemic, Abbott said he is confident the state can continue reopening while controlling the spread of new infections.

“As we begin to open up Texas and Texans return to their jobs, we remain laser-focused on maintaining abundant hospital capacity,” said Abbott, a Republican. “The best way to contain the spread of this virus is by all Texans working together and following simple safety precautions.”

On Tuesday, the Department of State Health Services reported just over 2,500 COVID-19 patients in Texas hospitals, the highest single-day total since the pandemic began and nearly 67 percent more than on Memorial Day in late May. State and local leaders have pointed to the holiday weekend as one likely cause for the increase.

Statewide, there are still thousands of hospital beds and ventilators available. But in some of the largest cities, including San Antonio and Houston, the surge is pushing new limits. In Harris County, some hospitals said late last week that their intensive care units were near or above capacity.

Bill McKeon, CEO of the Texas Medical Center, said their number of COVID-19 patients has nearly doubled from its previous peak in late April. Many of the patients admitted now are younger and generally healthier, but are still susceptible to serious illness or death from the disease.

“If it continues to grow at this rate, we’re going to be in real trouble,” McKeon said of the admissions. He added that while it may not be feasible to reimpose lockdowns or other restrictions, state leaders should consider slowing the reopening if the uptick continues.

The official death count is past 2,000 now, though everyone knows that’s an undercount. On a per capita basis that’s still pretty low, but we’re doing our best to catch up. The idea that we’re “controlling the spread” in any fashion is laughable, except there’s nothing funny about what’s happening. And then we get this:

Abbott remained unwilling Tuesday to allow local officials to enforce their own mask ordinances, even as he acknowledged that many Texans are not wearing them. He instead accused Democratic county judges of not having done enough to punish businesses that fail to comply with other protocols, such as limits on public gatherings.

While they have the authority, Abbott said, many “haven’t lifted a finger.”

Hey, remember when Greg Abbott cravenly flip-flopped on consequences for not following his own executive orders? Good times, good times. What would you like the county judges to use, harsh language? Let’s not forget who’s in charge here.

But local officials are still trying, at least:

The mayors of nine of Texas’ biggest cities urged Gov. Greg Abbott in a letter Tuesday to grant them the “authority to set rules and regulations” mandating face masks during the coronavirus pandemic.

As COVID-19 cases and hospitalizations continue to climb in Texas, an executive order from Abbott bans local governments from imposing fines or criminal penalties on people who don’t wear masks in public. The mayors wrote that many people in their cities continue to refuse to wear face masks and that “a one-size-fits-all approach is not the best option” when it comes to regulating the issue.

The letter is signed by Houston Mayor Sylvester Turner, San Antonio Mayor Ron Nirenberg, Austin Mayor Steve Adler, Dallas Mayor Eric Johnson, Fort Worth Mayor Betsy Price, El Paso Mayor Dee Margo, Arlington Mayor Jeff Williams, Plano Mayor Harry LaRosiliere and Grand Prairie Mayor Ron Jensen.

The letter asks Abbott to consider allowing each city’s local officials to decide whether to require the use of a face covering in order to prevent the spread of the virus.

Mayor Turner’s press release is here, and a copy of the letter sent to Abbott is here. There was no response as of Tuesday afternoon.

Finally, let’s not forget that even as businesses may want to reopen, coronavirus may not let them. It’s almost as if an unchecked pandemic is a hindrance to having your economy run at full capacity. But don’t worry, Greg Abbott has everything under control. Now keep clapping!