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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!

We keep hitting the wrong marks

Up, up, and up.

For the second day in a row, Texas has reported a record number of patients hospitalized with the new coronavirus, a metric Gov. Greg Abbott has said he’s watching as businesses continue reopening and limits on their operations are loosened.

Data released Tuesday by the Texas Department of State Health Services shows 2,056 people were hospitalized with COVID-19, up from 1,935 the day before. The previous high was May 5, when 1,888 people were hospitalized.

The figures come a little more than a month since Abbott’s statewide stay-at-home order ended and he began a phased reopening of businesses. It also comes about two weeks after Memorial Day.

[…]

“I’m concerned but not yet alarmed,” Abbott told a North Texas television station. “I look at Amarillo that was a hot spot zone a couple of weeks ago, where they had a lot of concerns. We had surge response teams that addressed it, and now their hospitalizations are going down.”

Texas has 15,400 available hospital beds and 1,700 available ICU beds, the data shows. There are 5,900 ventilators available. The number of available beds is seen as a key gauge for the state’s ability to handle a potential surge in coronavirus cases, and Abbott has said the hospitalization rate — the proportion of infected Texans who are requiring hospitalization — is a benchmark he’s closely monitoring. He cited it as an encouraging metric as the state’s stay-at-home order expired at the end of April.

In Houston, Dallas and other areas that have seen increased hospitalizations, “we need to drill down and find out exactly why that is,” Abbott said.

Yeah, I’m closely monitoring the hospitalization rate, too. We’re now at three straight days of record numbers there, for those of you playing along at home. It’s happening locally, and it’s mostly been happening since Memorial Day. I’m going to keep asking the same question I have every time I do one of these posts: What’s our plan for when we start getting into the “dangerously full” zone for hospitals? If it turns out to be localized rather than everywhere in the state, will Greg Abbott let local leaders have more discretion to take action as they had back in March? I really really hope it doesn’t come to that, but hope seems to be all we’ve got.

UPDATE: From the Trib: “Texas reports largest single-day increase in coronavirus cases”. Insert shrug emoji here.

Austin’s sick leave ordinance is officially dead

Killed by the State Supreme Court, which should come as a surprise to no one.

Austin still cannot enforce a mandatory paid sick leave ordinance its city council passed in February 2018 after the Texas Supreme Court on Friday declined to hear its case — during a pandemic that some policy experts argue has shown the need for such policies.

The ordinance — which required most private employers to allow workers to accrue 64 hours of paid sick leave per year — never went into effect, and has been in conservative crosshairs for more than two years. As soon as it was passed, Republican state lawmakers vowed that they would have it overturned with a state law. But so far, the death knell for the capital city’s policy, and similar policies in other major Texas cities, has come from the courts.

Represented by the conservative Texas Public Policy Foundation, a group of Austin businesses sued in 2018 to block it, arguing that the city ordinance was unconstitutional because it conflicted with the Texas Minimum Wage Act, which sets a statewide policy. Texas Attorney General Ken Paxton weighed in on the side of the businesses.

The Austin-based 3rd Court of Appeals, then dominated by Republicans, ruled in November 2018 that the ordinance was unconstitutional — a decision that will stand after the high court declined to hear Austin’s appeal this week. The court did not offer a reason for denying the appeal in a one-line order.

I never paid that much attention to the Austin ordinance or similar ones like it in San Antonio and Dallas because it was obvious from the jump how this was going to go. Republicans tried to pass a bill in the 2019 session that would have not only forbidden cities from passing sick leave ordinances but gone much farther than that, and only died because Dan Patrick tried to use it as a vehicle to overturn local non-discrimination ordinances, which after the 2018 election was a step too far. There has been some recent energy in Houston for passing a sick leave ordinance, but that is clearly a non-starter now. The only way this is happening is to pass such a bill in the Legislature, and that’s going to mean winning not only a majority in both legislative chambers but a bunch of statewide elections, too. On our side is the fact that paid sick leave polls well, and now is the best possible time to persuade people that forcing sick employees to go to work or lose pay is a Bad Idea. There’s a lot of work to be done to make this happen, but it’s doable.

Hotze and pals still crying to the Supreme Court

It’s hard to keep track of it all.

Houston GOP activist Steve Hotze and a coalition of business owners and conservatives have launched a legal challenge claiming Gov. Greg Abbott’s emergency orders related to the coronavirus violate the Texas Constitution.

In a 34-page emergency pleading filed Friday, lawyers for Hotze as well as three pastors, state Rep. Bill Zedler and five business owners ask the Texas Supreme Court to strike down the orders.

Abbott’s office did not immediately respond to a request for comment.

Attorney Jared Woodfill argued in the petition that the governor does not have the power to issue mandates that suspend state laws and that he should have convened the Legislature instead.

“Our senators and state representatives have been muted because Gov. Abbott has chosen to act as a king, and that is fundamentally unconstitutional and fundamentally wrong,” Woodfill said.

Even if the law that gave Abbott his emergency powers is constitutional, Woodfill wrote, the orders are still unconstitutional because they deny due process by assuming every Texan and business is a threat to public health without allowing them the chance to defend themselves; violate equal protection by allowing some businesses to stay open and others not; and are otherwise “arbitrary” and “capricious.”

[…]

Woodfill said the petitioners’ goal is to set the precedent for governors’ authority during future emergencies.

“What’s going to happen if we have a COVID-20?” Woodfill said. “Are we going to again surrender all our constitutional rights?”

It’s hard to keep track of all the lawsuits and petitions coming from the Hotze machine, but I’m going to try. He and this same cohort (more or less) had previously filed a lawsuit in Travis County against Abbott and Paxton over the statewide stay at home orders. This had followed a lawsuit filed in March against the Harris County stay at home order, which he then tried to get fast-tracked to the Supreme Court but was denied. He then filed another lawsuit against Harris County over the face mask order and sought an emergency ruling from the Supreme Court on it, but by that time Abbott had issued an order overriding local orders and forbidding the requirement that face masks be worn. It’s not clear to me if this pleading is related to the Travis County lawsuit against Abbott and Paxton or if it is a second front in their war on anyone who dares to try to tell them what to do under any circumstance. I’m also not sure if that Harris County lawsuit is still in effect or if it has been mooted by subsequent state actions.

All right, so that’s where I think we are now. I’ll say again, I think there are very valid questions to be asked about what powers the Governor does and does not have in emergencies. When must the Legislature be involved? What if any laws can be superseded or suspended by executive order, and under what circumstance? What power does the Governor have to unilaterally overrule cities and counties, whose executives have their own emergency powers? There’s plenty of room for robust debate on these topics, and I hope the Lege addresses some of them in the spring. It’s clear that the Governor – and Mayors, and County Judges – need to have some latitude to take quick action in times of crisis, but it’s equally clear there needs to be some limits on that, in terms of scope and duration and jurisdiction. I don’t want any Governor to have unchecked power, least of all Greg Abbott. I also don’t want a bunch of nihilistic cranks to have the power to disregard public health and safety with impunity. I don’t want the worst people in the world to be the ones asking the questions that will affect all of us going forward. I hope the Supreme Court is up to the task of responding to this.

So you want some flood bond project money?

Harris County plays a little hardball.

Harris County on Tuesday plans to restrict flood bond projects to municipalities that meet its floodplain development standards, effectively forcing the 34 cities within its borders to adopt stricter rules to access the $2.5 billion pot.

The policy change is meant to protect the county’s largest-ever investment in flood control infrastructure and create uniformity in building rules, following the principle that cities should not permit development than can worsen flooding for their neighbors.

“The goal isn’t to punish anybody,” County Engineer John Blount said. “It’s to announce, ‘Hey, these are the minimum standards we think you should enforce.’”

By the end of this year, cities must set minimum detention rules for new development, prohibit builders from filling in the 500-year floodplain and base standards on the newest rainfall rates, among other requirements.

Many, including the city of Houston, already have updated their rules. County floodplain experts are available to help the remaining cities do so, Blount said.

County Judge Lina Hidalgo said forcing small cities to improve their standards helps them avoid conflict with developers who may oppose the changes. Harris County already haggled with the building community over upgrading its own rules last year.

“This gives them the opportunity to point to us and say, “Look, it’s the county that’s making us do this,’” Hidalgo said. “Hopefully, this will take some of the politics out of that.”

You can look at it that way, as Harris County helping the small cities help themselves by playing the heavy with the developers. You can also look at it as the county protecting its own legitimate interests by not wasting money on projects that will be undermined by lax standards, and you can look at it as the county using its financial might to enforce a rigid standards on smaller and more local government entities. It’s the local control fight in another context, and there’s more than one way to view it. I think the county is correct on the merits, and I’m not even sure there is a good counter-argument to their position in this case. But since local control and the heavy hand of the state government – quite a recent development there, as we know – is a regular topic here, I thought it was worth pondering this initiative from that angle.

Hidalgo extends stay-at-home order

Well, sort of.

Judge Lina Hidalgo

Harris County Judge Lina Hidalgo on Thursday issued new guidelines urging residents to stay home when possible, even as Gov. Greg Abbott reopens most businesses.

The extended Stay Home, Work Safe order is in effect through June 10, though it bears little resemblance to the original directive in March that closed most businesses and ordered residents to remain at home.

San Antonio and Bexar County extended their own stay-home guidelines through June 4.

Abbott’s orders reopening Texas businesses override any rules from local officials. The governor also barred cities and counties from enforcing facemask requirements, as Hidalgo had attempted.

The county judge said her order reminds residents to keep practicing social distancing.

“I don’t want the community to get the message that we’re done,” Hidalgo said. “We may well be in the eye of the hurricane. There’s still no cure, no vaccine.”

[…]

Hidalgo on Thursday also unveiled a series of guidelines meant to protect employees returning to their jobs and help businesses create safe workplaces. They include staggering shifts to avoid congregating workers, taking employees’ temperatures, providing face coverings and never requiring anyone to come to work if they feel ill.

Retail firms should clean and disinfect shops before reopening and give employees a break every hour so they may wash their hands or take other safety precautions, she said. Employers also should keep attendance of all workers on-site each day, so contract tracing can easily occur in the event of an outbreak.

State Rep. Armando Walle, whom Hidalgo appointed the county’s coronavirus recovery czar, said it is hoped the worker guidelines will prevent outbreaks like those discovered at meatpacking plants in the Texas Panhandle.

You can see the amended order here. It heavily references the most recent gubernatorial executive order, and encourages everyone to continue social distancing. The fact of the matter is that while the daily new case average is holding steady, that means it isn’t decreasing. We’re not getting any closer to having no new cases. That means that another increase in the new case rate could still happen, because the disease hasn’t gone away. If we don’t want a spike to happen and we do want to reopen, we have to keep being careful and keep exercising caution. We’re not past this, we’re choosing to live with it. It’s up to us to make sure we don’t regret that choice.

Another profile of Judge Hidalgo

It’s good, and she deserves the attention she’s getting, but there’s something about this that bugs me a little, and I’m trying to put my finger on it.

Judge Lina Hidalgo

On March 1, before Harris County reported its first confirmed case of the coronavirus but as the disease was already infiltrating America’s biggest cities, Harris County Judge Lina Hidalgo made a call to ground zero.

It was Dow Constantine, her counterpart in Washington state’s King County, who picked up. At the time, he was responding to what was believed to be the first coronavirus death in the United States.

Hidalgo believed Texas had the benefit of precious time, and she wanted Constantine’s advice to make sure she didn’t squander it. What did he wish he had known two weeks ago? How could Washington have been more prepared?

“I sat down with my team and said, ‘Guys, this is coming.’ It’s a bit like a hurricane in that we see it coming, but with this one we had more time,” Hidalgo said in an interview with The Texas Tribune. “There was no excuse to be caught flat-footed.” (Constantine told the Tribune that Hidalgo was the only county official who took the initiative to reach out for advice in the early days of the crisis.)

Harris County, the state’s largest, leads Texas in coronavirus cases and deaths, but the area has largely avoided the fates of the hardest-hit regions like Washington state, New York and Louisiana, where a surge of patients overwhelmed hospital systems. While the daily number of new cases reported in Texas continues to climb, the Houston area’s numbers have plateaued at a number far below their peak last month. The result is that Hidalgo, a first-term political figure, has been thrust into the spotlight.

Hidalgo, who took office in the aftermath of Hurricane Harvey, came into the job knowing she would have to prepare for disasters. “This is a huge county, and when you have landmass the size of Rhode Island and around 5 million people, things are bound to happen,” she said.

What she was not prepared for was the acrid backlash that would follow.

It goes from there, and it’s a good recap of what has happened so far and who (Republicans) has been vocally (and often insultingly) critical of Hidalgo, along with some biography that we should be reasonably familiar with by now. Like I said, there’s something about this that nags at me, and I have a hard time pinning it down. Part of me wishes that the main loudmouth critics in this story, like State Sen. Paul Bettencourt, would be made to answer just exactly what they would have done in her position. That can be satisfying to consider, but in reality they’d just come up with their own alternate history where everything they did turned out even better, and that accomplishes nothing. We can run a gazillion simulations of the pandemic based on whatever conditions we want to apply, but we only get to live it once, and we can never say for sure what might have been.

Perhaps another way to do this kind of story is to ignore the political critics and focus instead on the people who are front and center at dealing with the pandemic and its effects, and get their view on how various decisions and policies have helped or hindered them. The problem there is that people often don’t know or can’t isolate a particular action taken by one branch of government, and so what you get is a mix of their own interpretations and competing factors. How exactly do you distinguish between the feds, the state, and the locals have done if you’re a critical care doctor or nurse, or a grocery story employee? So I don’t know what that accomplishes, either.

So I don’t know that there’s a better way to tell this story than what we have here, which perhaps frustrates a close observer like myself but is more useful to someone who doesn’t spend as much time on this kind of minutia. I at least can always talk to my fellow nerds and get the unreported gossip, which is as much what I want as anything else. What do you want from stories like this?

Patrick’s megadonor task force tells him what he wanted to hear

Knock me over with a bag full of unmarked bills.

Local governments could find their emergency powers hemmed in during future emergencies under recommendations proposed by a task force that Lt. Gov. Dan Patrick set up.

State government needs an off-switch to end local disaster declarations if necessary and clarify what steps mayors, counties and school boards can take during an emergency, says the Texans Back to Work Task Force in its 114-page report.

“The recent shutdown showed how the principles of representative government can be thwarted when mayors and county judges have too much power in making unilateral decisions without the agreement of the rest of the executive body,” the report says.

The report comes as public pushback against emergency orders is increasing at all levels of government, particularly from conservatives.

[…]

“Obviously we’re not calling for a one-size-fits-all,” said Task Force Chairman Brint Ryan, founder and CEO of Ryan, LLC. “But if there was a framework, you know a conceptual framework or guidelines in place, then you could achieve that local control and local initiative without confusing businesses that have to operate in more than one locale.”

Patrick echoed that concern, saying “we can’t have this patchwork” where even cities in the same county can have different rules.

See here for the background. Just a reminder, there was a time when Greg Abbott thought it was just peachy keen for local officials to make their own decisions about stay at home orders, because “What is best in Dallas may not be best for Amarillo or Abilene.” Funny how these things work, isn’t it? Also as a reminder, those whiny conservatives are in the minority of public opinion. But Dan Patrick’s gonna Dan Patrick, and he chooses his megadonors wisely. We could have had this report the same day he named his task force, it’s not like they were going to come to any other conclusion.

State Supreme Court is skeptical of stay-at-home orders

They’re not ready to act yet, though.

In turning down a case challenging Gov. Greg Abbott’s order allowing certain Texas businesses to reopen, the Texas Supreme Court hinted Tuesday that it is sympathetic to constitutionality concerns raised by coronavirus restrictions.

The state’s highest civil court declined to take the case —spearheaded by a Dallas salon owner whose decision to open in defiance of the order prompted demonstrations and TV spots over the past few weeks — saying lower courts should first consider whether the restrictions should stand. The Texas Supreme Court is generally the “court of last resort.”

Justice James D. Blacklock wrote in the opinion Tuesday that during a public health emergency, the onus is on the government to explain why its measures are necessary and why other less restrictive measures would not adequately address the threat. District courts will need to decide how to judge whether that’s been accomplished, he wrote.

“When the present crisis began, perhaps not enough was known about the virus to second-guess the worst-case projections motivating the lockdowns,” Blacklock wrote. “As more becomes known about the threat and about the less restrictive, more targeted ways to respond to it, continued burdens on constitutional liberties may not survive judicial scrutiny.”

[…]

The businesses argue in their suit that local authorities do not have the power to close businesses or threaten fines or jail time. The suit says that local stay-at-home orders mandating closures of certain, but not all businesses, are unconstitutional. Instead the governor should have convened a special legislative session as the Texas Constitution allows in the case of a “disease threat,” it says.

Business owners across Texas “are having their legal and constitutional rights, and the constitutional rights of their businesses, continuously infringed as long as these authorities are allowed to enforce executive orders, and particularly so when the executive orders are enforced arbitrarily,” the suit states.

They are seeking a court order to block enforcement of all local orders and had hoped to skip over district courts by going straight to the state high court.

I have to say, I don’t have any particular problem with this. They were right to send this back to the lower courts, which is where the facts can and should be established. They are right that local and state government must adequately justify their actions and not go overboard. There’s certainly a case to be made that Greg Abbott is doing way too much on his own, without involving or even informing legislators of his actions. Calling a special session to get things done takes time, which isn’t always in abundance, and we are in a place where no one really knows what is the optimal thing to do so we had been fairly cautious up till now. We will hopefully have a much better idea how to react – and have a federal government that is capable of responding to events like these – the next time we have to. In the meantime, it’s good and right to have a thorough discussion about what we should be doing and how we should be doing it, and making sure the government is accountable for its decisions.

And so reopening begins

I have questions.

Gov. Greg Abbott said Monday that he will let the state’s stay-at-home order expire Thursday as scheduled and allow businesses to begin reopening in phases the next day, the latest ramp-up in his push to restart the Texas economy amid the coronavirus pandemic.

First to open Friday: retail stores, restaurants, movie theaters and malls. But they will only be allowed to operate at 25% capacity. Museums and libraries will also be allowed to open at 25% capacity, but hands-on exhibits must remain closed.

Abbott said a second phase of business reopenings could come as soon as May 18 — as long as the state sees “two weeks of data to confirm no flare-up of COVID-19.” That second phase would allow business to expand their occupancy to 50%, according to the governor.

Abbott made the announcement during a news conference at the Texas Capitol, which he began by saying he would let the stay-at-home order expire because it “has done its job to slow the growth of COVID-19.” While the spread of the virus in Texas has slowed down throughout April, the number of cases is still increasing day to day, and it is unclear if the state has yet seen its peak.

“Now it’s time to set a new course, a course that responsibly opens up business in Texas,” Abbott said, flanked by Lt. Gov. Dan Patrick and Texas House Speaker Dennis Bonnen. “Just as we united as one state to slow COVID-19, we must also come together to begin rebuilding the lives and the livelihoods of our fellow Texans.”

Abbott said his new order “supersedes all local orders” saying those businesses must remain closed. He also said his order overrules any local government that wants to impose a fine or penalty for not wearing a mask — something the latest statewide rules encourage but do not mandate.

Speaking shortly after Abbott in Houston, the city’s mayor, Sylvester Turner, told reporters that Abbott’s new order “pretty much will take these measures, the ability to [issue] stay-at-home orders and things of that nature, out of our hands locally.” He said he hoped Abbott’s plan works but offered a “cautionary note,” pointing out that there is still no vaccine and statistics show the “virus is still here,” even as local measures have slowed it down.

Abbott stressed that his order “gives permission to reopen, not a requirement,” and businesses can stay shuttered if they would like.

At the same time, Abbott said he is holding off on reopening certain businesses for the time, including barbershops, hair salons, bars and gyms. He said he hopes those businesses can open “on or no later than mid-May.”

[…]

Abbott mostly focused Monday on contact tracing, or the practice of tracking down and isolating all the people someone who tested positive for the virus has come into contact with. Abbott said Texas is already in the second phase of its contact tracing plan, adding 1,000 tracers on top of the existing 1,100 and launching a statewide app and call center to improve the process.

Abbott continued to talk of a coming increase in testing and said the state soon would “easily exceed our goal of 25,000 tests per day.” The state has been adding an average about 14,000 tests per day over the past week, according to figures from the Texas Department of State Health Services. Still, the total number of tests done as of Monday — 290,517 — remained about 1% of Texas’ nearly 29 million people.

See here for the background, and here for the plan, such as it is. It’s full of guidelines for various businesses and customers and nursing homes and the like, and short on details about things like how we’re going to achieve the testing goal. If you haven’t yet started wearing a face mask you don’t have to, though you really should and in some places you won’t have a choice regardless of what Abbott says.

I said I have questions, so here are a few:

– How many businesses will consider it worth the bother to reopen at 25% capacity?
– What does “confirm no flare-up of COVID-19” mean? As the story notes, the daily number of cases is continuing to rise. If two weeks from now that is still the case, but the rate of the daily increase hasn’t gone up, is that a success under the Abbott plan?
– What happens if there’s a local “flare up”, like say at another meat processing facility, or just in some random part of the state? If Montgomery County has seen an uptick in cases, do they get to re-impose a shutdown order?
– When should we expect to see that statewide app? Will it require some minimum number of people to download and install it in order to work? What metrics will there be for it – number of app downloads, number of people traced, number of infections mapped out, etc? What happens if we fail to meet those metrics?
– What medical experts advised on this? Because clearly not all medical experts are in agreement with it.

I don’t know the answer to these questions. I doubt Greg Abbott knows the answer to most of them. As I said before, the word that comes to mind for this is “half-baked”. Maybe everything will be fine, maybe we’re just easing up on less-risky behavior, maybe that testing and contact tracing regimen will be more robust than I expect, maybe people will continue to take social distancing seriously enough to keep a lid on things. I hope everything does go well. I’d surely like to start going places and doing things again. I’m just concerned that we barely have a Plan A, let alone a Plan B. What will we do if this doesn’t go the way we hope? The Current, the Press, the Rivard Report, and the Chron have more.

Hotze goes crying to the Supreme Court

This effing guy, I swear.

Houston conservative activist Steve Hotze on Monday filed a petition with the Texas Supreme Court seeking an emergency ruling on Harris County Judge Lina Hidalgo’s mask order, which took effect this morning.

Hotze originally filed the lawsuit in state court last week, but District Judge Steven Kirkland on Friday denied his request for a temporary restraining order, allowing Hidalgo’s mandate to take effect Monday, as planned.

Hotze’s new filing echoes the argument he made to Kirkland: that the Texas Constitution and local government code do not give Hidalgo authority to require people to cover their faces in public.

[…]

During a Friday hearing in Kirkland’s court, Assistant County Attorney Seth Hopkins argued that Hotze did not have standing to challenge the order because he had no “actual imminent fear of prosecution.”

“The order itself tells the law enforcement, use broad discretion,” Hopkins said, according to a court transcript. “And the plaintiff concedes he’s not going to be prosecuted.”

Hotze attorney Jared Woodfill responded, “So, I guess my question is, if they don’t plan to enforce it, then why is the language even there? Why wouldn’t it just continue to be voluntary…?” He also clarified Monday that Hotze does not “concede he’s not going to be prosecuted” under the order.

Hopkins said the order allows officers to impose a fine if there is an “extreme case, but I think in the examples we have, we don’t have a case like that right now.”

See here for the background. We now have the Abbott reopening order, which overrules any local order that allows for a fine or other punishment for non-mask-wearing. I would think, in my non-lawyerly way, that Harris County will add that to its argument that Hotze has no standing. The Supreme Court has asked for a response from the county by this Friday, so we’ll see.

The real problem is those uppity local officials

My God, the Republican playbook is so predictable these days.

Judge Lina Hidalgo

Local governments have gone too far in issuing emergency orders during the coronavirus pandemic and can expect to have those powers whittled down when the Texas Legislature meets again, key state lawmakers say.

State laws give local leaders broad power during emergencies, but state Sen. Paul Bettencourt of Houston, a leading Republican in the Texas Senate, said too many local officials have taken it too far.

“We are going to have to look at all these emergency powers and see if they have to be scrubbed down,” Bettencourt said.

In Chambers County outside of Houston, for example, 10 p.m. curfews have been imposed on adults. In other counties, it’s prohibited to have more than two people in a car. In Laredo, people were allowed to exercise, but bicycle riding was barred.

Local governments are accustomed to playing defense against the Legislature. During each of the last two legislative sessions, state lawmakers have tried to curb local authority on myriad issues including tree ordinances, annexations and property tax collections.

Democrats say they’re getting used to this drumbeat of Republicans trying to take authority away from cities and suburbs as they have become more Democratic. They say the cities and counties needed to move quickly because Republican Gov. Greg Abbott waited to issue a statewide stay-home order until 30 other states had done so.

Democratic Harris County Judge Lina Hidalgo has been a consistent target for frustrated Republicans.

[…]

State Rep. Gene Wu, D-Houston, said the Republicans should be thanking local leaders such as Hidalgo and Mayor Sylvester Turner. While Abbott waited to issue statewide orders closing restaurants or requiring residents to stay home, Turner and Hidalgo were moving far faster and helping keep down the spread of the virus, Wu said.

“It’s our local governments that have had to step up and done an outstanding job,” Wu said. “The reason our numbers are so low is because they took decisive action early.”

Hey, remember when Greg Abbott was only too happy to let local leaders do the leading, because “What is best in Dallas may not be best for Amarillo or Abilene”? Good times. Have I mentioned that it’s really important that Democrats win the State House this election? Now you have another reason why.

Greg Abbott’s grand plan is coming

Ready or not (spoiler alert: not ready).

Gov. Greg Abbott could make an announcement as soon as Friday about reopening a wide range of Texas businesses amid the coronavirus pandemic, including restaurants, hair salons and retail outlets.

During a series of radio interviews Wednesday, Abbott gave the most details yet about the highly anticipated announcement, which he has been previewing since he announced preliminary steps to reopen the economy last week. He initially advertised the next wave of steps as scheduled for Monday but made clear in some of the interviews that they could now come sooner.

Abbott stressed in the interviews that he is seeking approval from medical advisers on the business reopenings and that they will reopen under new standards to slow the spread of the coronavirus. He also suggested his announcement’s implementation could vary by county, depending on how prevalent the virus is in each place.

“We’re gonna be making an announcement opening so many different types of businesses, where you’re gonna be able to go to a hair salon, you’re gonna be able to go to any type of retail establishment you want to go to, different things like that, with a structure in place that will ensure that we slow the spread of the coronavirus,” Abbott told Lubbock radio host Chad Hasty, adding that businesses won’t be “fully opened, but … will be opened in strategic ways, in ways that are approved by doctors to make sure we contain the coronavirus.”

[…]

Currently, Texans can patronize restaurants through takeout or delivery. Starting Friday, retailers will be able to deliver items to customers’ cars or homes under the “retail-to-go” model that Abbott recently announced. Abbott’s comments Wednesday seemed to suggest that Texans would soon be able to go inside those establishments, though they would still be required to follow unspecified standards to keep the virus at bay.

Abbott’s comments came five days after he announced his initial measures to restart the economy, naming a task force, reopening state parks, relaxing restrictions on medial surgeries and allowing “retail-to-go.”

See here for the background. Who knows what this means, and who knows what medical advisers he’s listening to. I mean, Lord knows I need a haircut, but last time I had one it was given by someone who was not six feet away from me. The word that first comes to mind in reading this is “half-baked”.

And let’s be honest about something here. Abbott could order all restrictions lifted tomorrow if he wanted, but the economy isn’t going to “reopen” until everyone feels comfortable going out in public and doing all the things we used to do before everything was shut down. And right now, all the evidence we have says most people are not going to do that. Would you go to a sit-down restaurant tomorrow? A movie theater? A gym? The Galleria? Is your office set to reopen? Mine isn’t, at least for the next week. Most of us have still done grocery shopping and things like that, but we have all greatly minimized our social interactions, to the extent that our jobs allow. What exactly do Greg Abbott and Dan Patrick and all of the cheerleaders for reopening the economy think is going to happen? And what happens if the curve that everyone hopes is peaking starts to climb upwards again? The Chron has more.

Mask up

Time for the next step in virus mitigation.

Judge Lina Hidalgo

Harris County Judge Lina Hidalgo on Wednesday ordered residents to cover their faces in public, the latest effort by local governments to slow the spread of the novel coronavirus.

The new rules, which require residents 10 and older to cover their nose and mouth when outside the home, take effect Monday and last 30 days. Acceptable garments include a homemade mask, scarf, bandana or handkerchief. Medical masks or N-95 respirators are not recommended as they are most needed by first responders and health workers.

Under the order, the county’s 4.7 million residents must cover their faces at all times except when exercising, eating or drinking; the exemptions also include when individuals are alone in a separate single space, at home with roommates or family, or when wearing a mask poses a greater risk to security, mental or physical health. Violating the mask rules is punishable by a fine of up to $1,000, though Hidalgo urged police to use discretion.

Unlike previous restrictions announced by the city and county executives, Hidalgo’s mask order drew fierce, partisan rebuke, highlighting what has become a national political divide over coronavirus restrictions.

[…]

Employers at businesses deemed essential under Harris County’s stay-at-home order must provide face coverings and training to workers whose jobs require them to come into contact with colleagues or the public. Hidalgo has yet to determine whether to extend the stay-at-home rules, which expire April 30.

Hospitalization data suggests the curve of new cases is flattening here, Hidalgo said at a news conference Wednesday. The region still is susceptible to another wave of infections, she warned.

“If we get cocky, we get sloppy, we get right back to where we started, and all of the sacrifices people have been making have been in vain,” Hidalgo said while wearing a homemade mask. “Let’s not get complacent. Let’s remember that we still have work to do.”

Hidalgo said the mask rules were spurred by her team’s realization the outbreak would require a long-term health response that extends beyond the end of stay-home rules.

Houston Mayor Sylvester Turner endorsed Hidalgo’s plan. He thanked residents for their sacrifices to date and said he would announce a plan Thursday to distribute 70,000 masks to vulnerable residents.

Masks are a crucial tool to prevent a surge in cases as businesses and public spaces reopen, said Firas Zabaneh, an infectious disease expert at Houston Methodist. He said they also serve as a visual reminder to maintain social distancing.

“The public will be safer with masks on,” Zabaneh said. “As we ease the restrictions, more and more people are going to be interacting with each other.”

The Centers for Disease Control recommends wearing masks when social distancing is not possible, such as at a grocery store. Many people who have coronavirus do not show symptoms, and the disease can be spread through speaking, coughing or sneezing.

I omitted all the partisan criticism, which included a particularly whiny response from the police union president, because sniveling is pathetic and life is short. As the story notes, Laredo and Dallas and San Antonio have issued similar orders without any of the fuss; I’ll leave it to you to decide why the same thing from Judge Lina Hidalgo inspired such vitriol. The police guy went running to AG Ken Paxton to ask if she was allowed to do that, and he demurred, while reminding the cops that they do have the discretion to not issue citations.

Anyway, look. The way forward with this pandemic, certainly until we have an effective treatment regimen and eventually a vaccine, is going to include things like masks, plus continued social distancing and universal testing and a whole lot more hand sanitizer and bleach wipes. This is the new normal, whether we like it or not. It would be nice if everyone went along with this willingly, but we’ve already seen that a significant portion of the population doesn’t take any of this seriously. This is where we are.

Galveston and Montgomery Counties have not followed suit. For what it’s worth, they were behind the curve in issuing stay-at-home orders, too. With Greg Abbott’s forthcoming order to “reopen” the economy, it’s possible that Hidalgo’s order will be quite short-lived, since Abbott seems to have remembered that he doesn’t like letting local governments do things. As is so often the case lately, I have no idea what happens next. Buckle up, it’s gonna be bumpy. The Press has more.

So this is reopening

There’s not much to this, is there?

Gov. Greg Abbott on Friday announced initial steps to reopen the Texas economy during the coronavirus pandemic, including those that in the next week will loosen surgery restrictions at medical facilities, allow all retail stores to provide product pickups and reopen state parks.

Abbott also named a “statewide strike force” devoted to getting the economy going again. Austin banker James Huffines will chair the task force, while veteran lobbyist Mike Toomey will lead its staff. The group will oversee what Abbott described as a phased reopening, starting Friday with additional announcements set for April 27 and sometime in May.

At the same time, Abbott announced all Texas schools will stay closed through the rest of the academic year. He had previously shuttered them until May 4.

Abbott made the announcements during a news conference at the Texas Capitol that he began on a note of optimism.

“Because of the efforts by everyone to slow the spread, we’re now beginning to see glimmers that the worst of COVID-19 may soon be behind us,” Abbott said, noting the number of infections is “beginning to level off” and the death toll, while tragic, has “not come close to the early, dire predictions.”

“We have demonstrated that we can corral the coronavirus,” Abbott added.

[…]

Abbott said the task force will include fellow state leaders such as Patrick and Texas House Speaker Dennis Bonnen, as well as top medical experts including state health commissioner John Hellerstedt and Mark McClellan, former commissioner of the U.S. Food and Drug Administration. The medical advisers will focus on developing a strategy to “comprehensively test and trace COVID-19 that will enable Texas to gradually and safely” begin returning to normal, Abbott said.

The task force will be rounded out by an advisory group of business leaders, Abbott said, naming prominent entrepreneurs including Kendra Scott and Michael Dell.

The first phase came in a series of executive orders issued Friday. One order allows for product pickup at retail stores — what Abbott described as “retail-to-go” — that will begin April 24. Outlets will be allowed to bring orders straight to customers’ cars in a manner similar to how many restaurants are currently offering curbside pickup.

Another order, which goes into effect 11:59 p.m. Tuesday, will allow a limited amount of nonessential surgeries at hospitals, as long as those surgeries don’t deplete the hospitals’ supplies of personal protective equipment and allow the facilities to keep at least 25% of their capacity available for the treatment of patients with COVID-19, the illness caused by the new coronavirus.

A third order will allow state parks to open Monday. Visitors to parks will be required to wear masks and keep a safe distance from people outside their households.

Additional openings will be announced April 27 “after further input from medical staff,” Abbott said.

See here for the background, and here for the very manly-man-named Strike Force. Just so we’re clear, “beginning to level off” means we’re still not yet at the peak, which is to say the curve of new cases and deaths is still increasing. Go read that previous post about the curve maybe starting to flatten in Houston. “Near the peak” is not where you want to be.

There’s also no actual plan for expanded testing, which is a bare minimum for easing the restrictions. We are not testing more people in Texas. We don’t even really have the funding to test more people. Who are your medical advisors, and what is their advice for getting true comprehensive testing off the ground?

Hey, remember when Greg Abbott decided that it was better to let Mayors and County Judges lead the way on stay-at-home restrictions? Well, local leaders are nowhere to be found on the Strike Force.

What happens if the Strike Force and Dan Patrick’s Secret Megadonor Team disagree? Do they fight it out?

What if Greg Abbott reopened the economy and no one came, because they’re more worried about ramping down social distancing too quickly than they are about being able to go out in public like they used to? I can tell you that the latest word from the large multinational corporation that I work for is that they expect us all to still be working from home into May. I won’t be surprised if a lot of similar businesses are thinking along the same lines.

You get the idea. We all want to return to normal. We all want businesses to open again. But we all also want to not get sick and maybe die. I don’t think we’re ready for the returning to normal and opening things up part yet. The Chron, the Texas Signal, the Press, the Observer, and the Current have more.

UPDATE: What RG Ratcliffe says:

The problem is not so much that Abbott has named an advisory committee but that he has again found a way to deflect responsibility before taking action. Just as he let mayors and county judges do the hard work of shutting the state down to stop the spread of COVID-19, he is now hoping the strike force will help him balance competing demands for fighting the virus and getting Texans back to work. Abbott put his toe into the water on Friday, but put off big decisions until April 27, saying he wanted to be guided by data, doctors, and the advice of his strike force.

Such a weak leader.

What does “reopening the economy” look like?

We’ll find out (sort of) later this week.

Gov. Greg Abbott said Monday that reopening the Texas economy will be a “slow process” guided by public health concerns as he continued to preview a forthcoming executive order that will detail his strategy to reignite business in the state.

Abbott, who first hinted at his plans during a news conference Friday, said he’ll outline them later this week. Asked for more details Monday, he indicated his announcement will include a “comprehensive team” that he said will “evaluate what must be done for Texas to open back up, ensuring what we are doing is consistent with data, with medical analysis, as well as strategies about which type of businesses will be able to open up.”

“This is not gonna be a rush-the-gates, everybody-is-able-to-suddenly-reopen-all-at-once” situation, Abbott said during a news conference at the Texas Capitol in Austin where he announced $50 million in loans to small businesses suffering under the pandemic.

Abbott also told reporters to expect an announcement this week on whether schools will remain closed for the rest of the school year. Abbott previously ordered them closed until May 4.

[…]

As he did Friday, Abbott said Monday that testing will be a part of his announcement later this week on reopening the economy.

“We will ensure that a component of that will include adequate testing,” Abbott said, adding that he just had a hourlong conference call with Vice President Mike Pence and Deborah Birx, the White House coronavirus response coordinator, about the testing necessary to “safely reopen the state for doing business.”

That last part is interesting, since so far the state of Texas has sucked at doing testing. Far more of it will be necessary to really open society up again, or else we’ll be right back where we started, with this giant unstoppable risk that we’re all vulnerable to. I’ll wait till there are more details before I go too far down the rabbit hole, but the first question on my mind is will this override whatever stay-at-home orders there are still in the counties? You may recall, Abbott was perfectly happy to let mayors and county judges lead the way when the hard decisions had to be made about shutting down. Will he still respect them later this week when he wants to start things up, or will that all be yesterday’s news? How will the Abbott plan compare with the reopening plans in other states? Stay tuned and find out.

Of course he thinks that’s “essential”

Doesn’t get any more on-brand than this.

Best mugshot ever

Gun stores are essential business and should be allowed to remain open during the COVID-19 pandemic, Texas Attorney General Ken Paxton said Friday.

Paxton said in his nonbinding opinion that state law prevents cities and counties from “adopting regulations related to the transfer, possession, or ownership of firearms, or commerce in firearms.”

Rep. Dustin Burrows, R-Lubbock, on Tuesday requested that Paxton’s office weigh in on whether firearm sales can be listed as essential businesses by local officials, as businesses across the state have shuttered due to shelter-in-place orders designed to slow spread of the new coronavirus.

“Having access to tools of self-protection, hunting and for keeping your property safe and secure is always essential. It’s even more essential for access during times of uncertainty and emergency,” Burrows said in a written statement.

Many cities and counties had not designated gun retailers, ranges or manufacturers as essential businesses in their stay-at-home orders, Burrows said in his letter. However, San Antonio and Dallas County did exempt the fire arms businesses.

“It does not appear that cities or counties have the authority to restrict the transfer of firearms, even during a natural disaster,” Burrows wrote in his request.

The opinion comes less than 72 hours after the agency received Burrows’ request — a remarkably fast turnaround on a process that routinely takes weeks or months.

That’s because this process normally requires research and inquiry, and leave open the possibility of an answer that doesn’t conform to one’s initial inclinations. Couldn’t take any chances on that here, obviously. People need to be able to defend themselves against that virus. I recommend very small-caliber bullets.

AG opinions are not binding, of course, so a city or county could go ahead and impose a ban on gun stores anyway if they wanted to. That would leave it up to a court to decide; there’s a fight over this already happening in California, where gun stores were (also not surprisingly) not classified as “essential”. I rather doubt any Texas municipality would want to expend that kind of effort when there are more important things to do, but they could if they chose to. The whole thing is ridiculous, but here we are.

The state of the state’s response

I mean, it’s something.

Gov. Greg Abbott took multiple measures Sunday designed to expand hospital staffing and capacity in Texas, but declined to issue a statewide shelter-in-place order — even as calls for such an action increased as the new coronavirus continued to spread across the state.

In an effort to free up hospital beds in anticipation of an influx of patients sick with COVID-19, the disease caused by the coronavirus, Abbott ordered health care professionals to postpone “all surgeries that are not medically necessary” and suspended regulations to allow hospitals to treat more than one patient in a room.

But he did not order all Texans to shelter in place, noting that there are still many counties in the state without confirmed cases and that he wants to see the full impact of an executive order he issued Thursday. In the meantime, he welcomed local officials to take more restrictive action than he has statewide.

During an afternoon news conference at the state Capitol in Austin, Abbott also announced the formation of a “strike force” to respond to the coronavirus and that the Texas National Guard, which he activated several days ago, would be deployed this week to help hospitals deal with the outbreak.

In the lead-up to Abbott’s news conference, though, attention centered most intensely on whether he would go beyond the executive order that he issued Thursday. That order urged all Texans to limit public gatherings to 10 people, prohibited eating in at restaurants and bars and temporarily closed schools. That order went into effect midnight Friday and goes through midnight April 3.

“We need to see the level of effectiveness of the executive order,” Abbott said. “What we may be right for places like the large urban areas may not be right at this particular point of time for the more than 200 counties that have zero cases of COVID-19.”

[…]

Abbott said that his decision not to issue a statewide order should not stop local officials from issuing such orders in their jurisdictions.

“Local officials have the authority to implement more strict standards than I as governor have implemented in the state of Texas, “Abbott said. “If they choose to do so I would applaud them for doing so, but at this time it is not the appropriate approach to mandate that same strict standard across every area of the state, especially at a time when we are yet to see the results coming out of my most recent executive order.”

See here for the background. I can see the reason for Abbott’s actions, or lack thereof. It’s not clear that this is necessary for rural areas, and for the most part the localities that have needed such action have taken it themselves. (Insert reminder about Abbott’s self-serving relationship with the concept of “local control” here.) Indeed, the next story the Trib ran is about Dallas County prepping a shelter-in-place order. (Harris County Judge Lina Hidalgo has said she is considering such an order but has not yet announced one.) At least some hospitals have already acted to limit or suspend elective procedures as well. What all of this does is mostly make me think that Abbott is behind the curve rather than ahead of it. You know I don’t think much of our Governor, but even for him this seems kind of limp. What could he be doing that isn’t already being done? That’s what I’d like to know.

Another review of Judge Hidalgo’s first year

Though, oddly enough in a story about Harris County Judge Lina Hidalgo’s first year in office, most of the text is about outgoing Commissioner Steve Radack and the two-year-long temper tantrum he’s been throwing.

Judge Lina Hidalgo

For many years, the Harris County Commissioners’ Court, which oversees the third most populous county in the country and one of its most diverse, had been a place of easy consensus. At the time of Radack’s outburst, four of the five members of the commissioners’ court were white Republican men. They included county judge Ed Emmett, a popular moderate in a party running out of them. Most sessions passed by with the placidity of a koi pond. By cheering activists who sued the county and asserting that commissioners were supporting a racist policy while simultaneously trying to join their ranks, [Commissioner Rodney] Ellis was cannonballing into the water.

Three years later, in July of 2019, Radack looked considerably more chastened when the newly elected Ellis and the rest of the commissioners’ court met to vote on a settlement to the lawsuit—a sweeping $100 million overhaul that largely abolished the practice of jailing misdemeanor defendants who can’t afford cash bail. Reformers across the country hailed it as a major step toward making the criminal justice system fundamentally more equitable. The settlement was possible only because, just eight months before, Harris County voters had handed control of the commissioners’ court to Democrats for the first time since 1990. Radack and Jack Cagle were now the only two Republicans left on the court. Most astonishingly, voters had seen fit to replace Emmett, the beating heart of the county’s political establishment for more than a decade, with Lina Hidalgo, a 27-year-old Latina who had moved back to Houston to run against the 69-year-old Emmett. She was the first woman and Latino to lead Harris County.

Now Hidalgo and the other two Democrats—Ellis and former Harris County sheriff Adrian Garcia—ran things. For years, meetings had rarely lasted an hour. Under the new management they felt like committee hearings in the state legislature, often going for more than five hours and sometimes as long as nine, as the new majority pushed to enact its agenda—criminal justice reform, bringing transparency to county government, and improving flood planning—while members of the public came to support, oppose, and debate.

At the July meeting, Hidalgo beamed as she introduced the bail-reform settlement to the court. “This is a proud beginning,” she said, in the fight to build a criminal justice system in which “fairness and justice are preeminent.” She quoted from Martin Luther King Jr.’s 1963 address on the National Mall. She exuded, as members of her generation would say, good vibes only.

Ellis, a political operator who served 27 years in the Texas Senate, spoke glowingly too, calling the settlement, somewhat hyperbolically, “just as big as” Brown v. Board of Education. But the most dramatic moment came when he moved closer to his mic and stared at the side of the room where Radack and Cagle sat. “A very oppressive system has existed for decades,” he said. “And I don’t point an accusative finger at anyone, but it did, I think, indicate a certain blind indifference to what was going on. I think it’s incumbent on us to admit that,” he said, slowing for emphasis.

When it was his turn to speak, Radack turned to address the packed chamber, where during the period of public comments, most had spoken in support of the settlement. He understood that there were racial injustices in the system, he said.

But then he began pounding his palms on the wood in front of him. “This is a public table,” he said, his voice rising to a shout. Issues such as bail reform were supposed to be discussed in public, “not [by] a few people from the commissioners’ offices and whomever, behind closed doors . . . sitting there and discussing what they’re going to do for all of us.” He stood up, getting angrier and flipping through the lengthy settlement for the audience. “Every single page says ‘Draft,’ ‘Confidential,’ ” he said. “I think that sucks!”

Hidalgo politely noted that the text of the settlement had been made available to the commissioners three days earlier. “And let’s be careful with the public table,” she said. Radack was learning something Ellis knew very well: It’s not fun to be in the minority in a lawmaking body. “There are consequences to elections,” Ellis added calmly. At the end of the year, Radack announced he was retiring, boosting Democrats’ chances of electing the fourth Democrat to the commissioners’ court this November—and giving them the same level of dominance Republicans enjoyed just a few years ago.

[…]

Now in the minority, Radack and his fellow Republicans have found other ways to show their displeasure. For one, they’ve made a lot of noise. At one meeting regarding transportation funding, Cagle brought copies of George Orwell’s dystopian novel 1984 to distribute to the audience, accusing Hidalgo’s court of engaging in doublespeak.

But the most important scuffle came in October. The commissioners met to pass a tax hike that would increase the county’s revenue by 8 percent before an annual deadline, citing the need to raise money before new laws passed by the state legislature went into effect that would restrict their ability to do so in the future. Cagle and Radack didn’t show up—depriving the court of a quorum and preventing a vote. (State law requires that four of the five members of county commissioners’ courts be present to vote on tax increases.) Hidalgo says the consequences of that missing revenue will hurt the county in the long run. “You won’t see a huge difference from one year to the next,” she said, “but it will compound over time.”

That anti-majoritarian maneuver is one reason why many Republicans in Austin are closely watching what’s happening in Harris County. Never huge fans of cities and counties to begin with, GOP lawmakers, led by several Houston-area Republicans, cracked down hard on local government during the 2019 session.

Now imagine if the Democrats tighten their grip on Harris County, finally flip Fort Worth’s Tarrant County (the last urban Republican holdout), and take over quickly growing suburban counties like Hays (south of Austin) and Fort Bend (southwest of Houston). Then they draw new county commissioner precincts to solidify their control. In this dark future for conservatives, Republicans in the Legislature work even harder to rein in Hidalgo and her colleagues across the state.

If Democrats can pick up Radack’s seat, only one Republican would remain on the commissioners’ court, which would prevent that Republican from breaking the quorum again. But what if the Legislature, learning from Radack’s example, changed the law to require all five members of the commissioners’ court to be present? Many blue counties, even the big Democratic ones like Dallas and Travis, have at least one Republican commissioner who could, if the law were changed, nullify the wishes of the other four and hold one-person veto power over budgetary matters, with huge consequences for local governments across the board. “That would be a pretty major thing,” said Radack, who’s given the issue a good deal of thought. “Probably one of the most major pieces of legislation to come around in a long time.”

I should note, this story was written, and I wrote my draft post of it, before coronavirus took over all of our lives. It should be clear that every politician going forward will be judged on how they performed during this particular crisis. I think Judge Hidalgo is doing quite well on that score so far, but we still have a long way to go. Now here’s what I wrote when I first blogged about this.

Putting Radack’s jackassery aside, I’ve been thinking a lot about what might happen in the near future as Republicans continue to lose their grip on the larger counties and maybe possibly could lose control at the state level. We saw what they did on the way out the door in states like Wisconsin and North Carolina, after all. Imagine if Dems do take over the State House this November. Would Greg Abbott call a special session to get one last shot at passing bills in a full-GOP-control environment? Maybe even take some action to clip a future Democratic Governor’s wings? He’d want to act now and not wait till his hypothetical loss in the 2022 election, because if there’s a Dem-majority House, he’s out of luck. For sure, the assault on cities and counties will be much harder to pull off without a Republican monopoly. The good news for us Dems is that it would be hard for Republicans here to make like their counterparts in WI and NC, but not impossible. We need to be thinking about this, and have some strategies prepared for just in case.

Anyway. To reiterate what I said before, I think Judge Hidalgo has done a very good job, and has positioned herself and the Court to do a lot more good this year. It’s not necessary to trade out Radack for a better model – that 3-2 majority is fine almost all the time – but it would help. And Lord knows, the man has had more than enough time in the spotlight. Move along, already.

(By the way, Fort Bend has already flipped. In the same way that Harris did, by Dems winning one Commissioner’s Court seat and the County Judge’s office, to go from 4-1 GOP to 3-2 Dem. And as with Harris, Fort Bend Dems have a chance to win a Republican-leaning set this year to get to 4-1 in their favor.)

Coronavirus and local control

From Politico, evidence that there are no small-government “conservatives” in pandemic self-isolation foxholes:

Texas is a big state with a proud small-government philosophy. And that’s being tested by the Covid-19 pandemic.

Strict bans on public gatherings to curtail the virus’ reach and widespread testing and treatment run counter to the politics of top Texas officials. Instead they’re calling on local officials to lead the response.

As governors in states including New York and California have imposed statewide measures such as closing schools and limiting commerce, Texas leaders have been reluctant to set restrictions conservative voters might consider draconian and business leaders oppose. They’ve also opposed steps to expand health insurance coverage.

Texas’ Republican Gov. Greg Abbott issued a disaster declaration Friday — after dozens of states already had done so — and activated the National Guard on Tuesday, after more than a dozen states already had. State officials have yet to impose statewide limits on public gatherings, close schools or beaches or issue a special open enrollment period for health insurance, as California, New York and other big states have. And some health providers say Texas has been slow to boost coronavirus testing capacity and help them meet equipment needs.

“In this instance, President Trump is right: Governors need to step up,” Clay Jenkins, a Democrat and Dallas County’s top elected official, said in an interview. “When it comes to stemming the tide of the loss of life that we’re staring at, the governor is in a unique position to act.”

Abbott is fully in charge of the state’s response, because as part of the small-government philosophy, the state’s Legislature meets only in odd years for 140 days. So far, more than 60 coronavirus cases and one death have been confirmed in the state. Abbott said he expects the number of cases to explode next week as more testing capacity comes online and more diagnoses are counted.

Abbott, who has been governor for five years, tends to shine in moments of crisis. He’s been relatively hands-off during legislative sessions, but has played an active role in managing during disaster. Abbott earned praise for providing a steady hand during Hurricane Harvey, which hit Houston in 2017.

But the swift-spreading coronavirus public health crisis is catching Texas unprepared. The state, which didn’t expand Medicaid, has the highest uninsured rate in the country meaning millions of people don’t have doctors to call if they show symptoms. And Abbott has opposed local paid sick leave ordinances, which could encourage sick people to stay home and keep from spreading the virus, saying they hamper business growth.

[…]

Abbott’s office says the governor believes in taking a decentralized approach letting local officials take the lead in imposing restrictions and relying on private companies to help boost testing capacity.

Several Texas cities and counties have already closed schools and limited public gatherings. That includes Austin, which issued an order Tuesday banning gatherings of more than 10 people and shutting down restaurants and bars through early May.

“County judges and mayors have done a very good job in listening to local health officials,” Abbott’s spokesman John Wittman said in an interview. “What is best in Dallas may not be best for Amarillo or Abilene.”

Those of you who are old enough to remember the last couple of legislative sessions have likely done a spit-take to the sound of a record scratch upon hearing those words. But they’re not the first time they have been uttered. From the Trib, plowing a similar furrow three days earlier:

Abbott’s office, asked about the local protocols, said Monday that cities and counties “have done a very good job of doing what is right for their municipalities” and nodded to how helpful local decision-making can be in a state as large as Texas. That approach is in stark contrast to Abbott’s recent attitude toward local control. In the past few years, he has routinely sparred with mayors and backed several laws that chipped away at the power of cities and counties.

“Texas is so diverse that what is right in Houston and Harris County and Dallas and San Antonio may not be the best approach in Amarillo,” Abbott spokesman John Wittman said. “These cities and counties are following the proper protocol and guidance that they are receiving from their local health departments.”

Abbott’s push for local decision-making comes as the nation’s top infectious disease expert said the most effective way to stop spread of COVID-19 may be a 14-day nationwide shutdown.

So, local control is best when tough decisions that Greg Abbott doesn’t want to have to make need to be made. Otherwise, cities and counties need to stop thinking and acting in their own best interests and let Greg Abbott and the Republican Party do all of that for them. Could someone please make sure to have multiple large multi-colored printouts of those John Wittman quotes plastered all around the Capitol next year? Thanks. The Observer, which goes into a lot more detail, has more.

Cable franchise fees lawsuit heard

Rooting for the cities, because this is a mess.

Lawyers representing 59 cities, including Austin, Houston, Dallas and San Antonio, on Wednesday asked an Austin district court judge to temporarily block a Texas law passed last year that cuts government fees for telecommunications and cable companies.

Senate Bill 1152, which took effect Sept. 1 and started to apply to payments starting Jan. 1, allows companies that offer both cable and phone services over the same lines to only pay the lesser of the two charges to local governments for using their rights-of-way. No physical change is required to add new uses of a line.

C. Robert Heath, one of the attorneys who represents the cities, said the law amounts to an unconstitutional gift of public resources to private corporations and said estimates show it would cost cities at least $100 million a year.

The cities argue that the Texas Constitution forbids cities, counties and other political subdivisions from giving away public money or things of value to private groups or individuals. The companies are not required to pass on savings to consumers because the state can’t regulate cable rates.

“It’s like ‘buy one, get one free,’” Heath said. “So we’re saying, ‘No, no, you can’t do that. You’re giving away the use of the right-of-way.’”

Houston Mayor Sylvester Turner had pushed legislators to oppose the measure and has said it cost the city about $17 million in annual revenue this year and has hurt its ability to offer services to residents.

“Given the fee would fluctuate with the number of cable customers, what is not changing is the significant impact this has had on our city budget,” Bill Kelly, Houston’s director of government relations, said Wednesday. “Anyone asking the cable companies why no one has lowered their bills?”

[…]

Assistant attorney general Drew Harris, who represents the state, argued that the reduced fee is not the same as a gift, making the analogy of toll roads that charge per car, not per passenger. Harris added that Texas law says the state owns rights-of-way, meaning the cost of using them is a matter for the Legislature to decide.

See here and here for the background. I must have missed the actual filing of the lawsuit, but never mind. We all know this will get to the Supreme Court eventually, and we know they love to rule in favor of businesses. The question is whether they’ll be overturning a lower court verdict or not. The judge has promised a quick ruling after the state files a response to a late plaintiffs’ motion, so we won’t have to wait too long to see where we start out.

The Observer overviews the DA primary

You’ve had a chance to listen to my interviews with DA candidates, now read this story for more on this important primary.

Kim Ogg

When Kim Ogg first ran for Harris County district attorney, she had a simple pitch for criminal justice reform: stop jailing people for petty pot possession. The position, novel to Houston politics in 2014, proved so popular that even her Republican opponent embraced a version of it. Ogg lost that first race, but she tried again in 2016, this time adding bail reform and a promise to create “a system that doesn’t oppress the poor” to her platform. She beat the incumbent by 8 percentage points to become Harris County’s first Democratic DA in 40 years.

Ogg was among the first wave of reform-minded “progressive prosecutors” elected across the country in recent years. This new class rejected a tough-on-crime ethos, advocating instead for fairness and jailing fewer people. Ogg quickly declared herself “part of the national reform movement” and started dismissing low-level marijuana charges for people who took a class and paid a fine. She also rejected so-called “trace cases” involving miniscule drug amounts and called for diversion instead of jail for small-time offenders. 

Over the course of her first term, however, progressives have soured on Ogg. While she publicly supported bail reform, she continued to seek high bail for people charged with minor offenses. She further disappointed them by objecting to historic bail reforms that followed a years-long lawsuit to end the practice of keeping low-level offenders in jail simply because they’re poor. Progressives have also bristled at Ogg’s repeated attempts to expand her office.

Now at the end of her first term, Ogg feels squeezed between opposing forces: a police union that accuses her of being soft on crime and critics on the left who say she’s failed to live up to her reputation. She’s facing a combative Democratic primary next month, flanked by challengers who insist that she’s stood in the way of progress during her first term. A Democratic sweep in the midterms that turned Harris County solid blue further emboldened local organizers who are seeking a new kind of reform prosecutor. 

While Ogg credits herself with boosting diversion programs and reducing prison sentences during her first term, her critics insist more fundamental changes are needed to fix yawning racial inequalities in the local justice system and to decarcerate one of the largest jails in the country. There was palpable tension between Ogg and the forces that helped elect her at a ACLU of Texas candidate forum in downtown Houston last Thursday. Some people in the standing-room-only crowd jeered as Ogg urged them to stick with her “balanced approach” to reform. After the forum, a woman walked up to Ogg and began arguing with her before campaign staffers quickly intervened.

In a phone call this week, Ogg sounded aggrieved and unappreciated, the way incumbents often do during tough re-election fights. “I started running before people in our local political arena even knew what a district attorney did,” she said. “Everything I wanted to do was a reformation of decades of static prosecutorial policy in Harris County. So of course I’m a reformer, and to be labeled otherwise—that’s a political issue more than a factual one.”

Ogg’s primary is one of several prosecutor races in Texas this year that could redefine the bounds of criminal justice reform in the state. As state lawmakers fail to make meaningful progress each legislative session, advocates for change have increasingly focused on amplifying key district attorney, judge, and sheriff races to transform how their communities are policed and prosecuted.

The article touches on the race in Travis County as well, where incumbent Margaret Moore is under similar fire. I have no idea what will happen in these races – they’re as prominent as any local election, but it’s hard to say how much of that breaks through in the non-stop fusillade of national political news – but they will have a significant effect in Harris and Travis Counties. A side issue I’ve been pondering, which I asked Audia Jones about when I spoke to her, is whether the Legislature (especially but not exclusively if it remains in Republican hands) will step in and try to impose some limits on what prosecutors can and can’t do. I can very easily see this as a red meat law-and-order issue for Dan Patrick (and, whenever someone wakes him up and reminds him that he’s Governor, Greg Abbott) in the 2021 session. I have no idea what they may try to do, but I’m sure their imagination won’t be so limited. Just something to keep in mind.