After Governor Abbott walked back his position on face masks and issued an executive order last week requiring residents to wear face coverings in public, law enforcement officials across Texas have said that they will not enforce the order.
Many sheriffs have argued that the order’s enforcement mechanisms are self-defeating.
“Local law enforcement and other local officials, as appropriate, can and should enforce this executive order,” the order states.
“But,” it adds, “no law enforcement or other official may detain, arrest, or confine in jail any person for a violation of this executive order or for related non-violent, non-felony offenses that are predicated on a violation of this executive order.”
The prohibition of detainment is one problem that has caused law enforcement to hesitate about enforcing the order.
“This language strips law enforcement of the necessary tools to enforce compliance with the law,” said the Montgomery County Sheriff’s Office.
“The language included in the Governor’s order could subject our agency, and Montgomery County as a whole, to civil liability as stopping someone for a face covering related issue could be construed or misconstrued as a detention. Additionally, holding someone for the purpose of issuing a citation related to a fine is a legally defined detention under current Texas Law.”
Kerr County Sheriff W.R. Hierholzer echoed the same concern, stating on Facebook, “In criminal law, detain means to hold a person in custody, often for purposes of questioning. […] How can we stop and talk to or write a citation or even give a verbal warning, WITHOUT detaining?”
The Texas District and County Attorneys Association (TDCAA) noted that with the order stripping law enforcement from the power of detaining, authorities will be unable to enforce it.
They also identified another problem with the order’s provision that on an individual’s first violation, law enforcement can only give a warning — after that, the order says that people can be fined up to $250 per instance.
“[I]f a fine is only an option for a repeat offender but there is no way to track warnings or ID non-detained initial offenders, then there really is no fine [because] it’s impossible to prove a prior warning,” stated the TDCAA.
Aside from the problems with detaining and tracking prior offenses, Denton County Sheriff Tracy Murphree noted another reason in his explanation of why he would not be enforcing the order.
“This is an executive order not a law. Only the legislature can make law. So the accusations that I’m refusing to enforce the law are not true,” said Murphree.
He pointed out that the order states law enforcement “can and should” enforce the order, but does not say that they “shall” — a legal difference that Abbott, being a former attorney general, would be aware of, argues Murphree.
Hierholzer similarly said that the lack of “shall” suggests that enforcement is not mandatory for officials.
Howard County Sheriff Stan Parker alluded to yet another difficulty in enforcing the order: exceptions granted for anyone with “a medical condition or disability that prevents wearing a face covering” or anyone “actively providing or obtaining access to religious worship.”
“We cannot ask you to disclose, by law, what your medical condition or disability is,” said Parker. “If you state you have a medical condition or disability we by law can go no further, so there is no legal way to enforce this.”
Similarly, Parker said that the exception for “access to religious worship” may be difficult for officers to ascertain.
For those reasons, Parker said that if residents are not wearing a mask, the Howard County Sheriff’s Office would assume that they meet one of the exceptions in the order.
Although the order’s problems present challenges for enforcement, there is one provision that most sheriffs are not disputing.
Abbott’s order states, “[A]ny official with authority to enforce this executive order may act to enforce trespassing laws and remove violators at the request of a business establishment or other property owner.”
If businesses require visitors to wear a face mask and a customer refuses, local law enforcement may intervene under the order.
“[A] private business can require you to wear a mask upon entering their business,” said Parker. “They do have the right to refuse service to anyone for any reason.”
The sheriffs’ offices in Smith and Montgomery counties noted the same.
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Daniel Friend is a reporter for The Texan. He participated in a Great Books program at Azusa Pacific University and graduated in 2019 with a degree in Political Science. He has studied C.S. Lewis’s science fiction trilogy and in his spare time you might find him writing his own novel partly inspired by the series.