IssuesAustin, Travis County Sued by Texas Attorney General for Refusing to Rescind Mask Mandate

The State of Texas and its capital city will once again go toe-to-toe in court, this time over the political subdivision's mask mandate.
March 11, 2021
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The City of Austin finds itself back in court opposite the State of Texas — this time over its mask mandate.

Filed by the Office of the Attorney General, the lawsuit names the City of Austin, Mayor Steve Adler, Travis County, county Judge Andy Brown, and Mark Escott, interim medical director and health authority, as defendants.

Wednesday was the effective date of Gov. Greg Abbott’s statewide mask mandate recission, which included a preemption of all other conflicting local orders.

Before its execution, Austin City Councilman Greg Casar stated the city would not comply and instead leave its local order in place with full enforcement. The local order’s enforcement mechanism is a fine for no more than $2,000 for noncompliance and currently runs through December 31, 2021.

While Abbott’s order removed the mandate, it still explicitly encouraged the wearing of masks and even suggested businesses continue to require them for entry.

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The Office of the Attorney General responded with a letter threatening a lawsuit unless the political subdivisions complied. It stated, “The decision to require masks or otherwise impose COVID-19-related operating limits is expressly reserved to private businesses on their own premises. It does not rest with jurisdictions like the City of Austin or Travis County or their local health authorities. Nor do they have the authority to threaten fines for non-compliance.”

“We have already taken you to court under similar circumstances. You lost. If you continue to flout the law in this manner, we’ll take you to court again and you will lose again,” it concluded.

Those “similar circumstances” occurred at the turn of the New Year when Austin set a 10:30 p.m. curfew for its bars, shutting them down on what is for most the biggest revenue night of the year.

Attorney General Ken Paxton sued them over the move, and emerged belatedly victorious in a New Year’s Day decision from the Supreme Court of Texas.

Mayor Steve Adler responded in-kind, stating, “We will fight Gov. Abbott and Attorney General Paxton’s assault against doctors and data for as long as we possibly can.”

He added, “Wearing masks is perhaps the most important thing we can do to slow the spread of COVID-19, to further open schools to more students for in-person learning, and to increasingly open businesses safely while minimizing the risk of any need to pull back. The Governor’s order and Texas Attorney General Ken Paxton’s efforts to end mask mandates creates ambiguity about masks where none should exist.”

“[The city and county will continue] existing health authority orders and using every tool available to us to reduce the spread of the virus.”

The lawsuit draws a line between disaster authority vested in the governor and that vested in political subdivisions. “The TDA makes the sitting Texas Governor the leader and focal point of the State’s emergency response,” it states.

“In sum, The State is likely to succeed on the merits here because: (1) the TDA’s language is in the State’s favor; (2) traditional legal preemption principles are in the State’s favor; and (3) the only courts to consider the issues raised here, which includes the Supreme Court of Texas, have effectively adopted the  state’s arguments and enjoined the more restrictive local emergency orders.”

The suit was filed in Travis County’s 98th District Court. Read the full lawsuit below.

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Brad Johnson

Brad Johnson

Brad Johnson is an Ohio native who graduated from the University of Cincinnati in 2017. He is an avid sports fan who most enjoys watching his favorite teams continue their title drought throughout his cognizant lifetime. In his free time, you may find Brad quoting Monty Python productions and trying to calculate the airspeed velocity of an unladen swallow.