As the days fighting a global pandemic locally stretch on, major metro counties are finding themselves often trading paint with state officials over what, exactly, constitutes a suggestion and what is an order.
That became apparent Tuesday as Texas Attorney General Ken Paxton wrote letters to officials with Travis, Bexar, and Dallas counties, as well as the mayors of San Antonio and Austin, warning them against making rules that went beyond what Gov. Greg Abbott has outlined.
Paxton said his letters warned officials that some of their local public health orders are “unlawful and can confuse law-abiding citizens.”
Paxton said that demands on houses of worship, restrictions on the operations of essential services, penalties for not wearing masks, shelter-in-place orders, and criminal penalties for violating even state orders were “unlawful and unenforceable.”
“Unfortunately, a few Texas counties and cities seem to have confused recommendations with requirements and have grossly exceeded state law to impose their own will on private citizens and businesses. These letters seek to avoid any public confusion as we reopen the state,” said Paxton. “I trust that local officials will act quickly to correct any orders that unlawfully conflict with Texas law and Gov. Abbott’s executive orders.”
In a letter to Dallas County Judge Clay Jenkins, Paxton took issue with county guidance on church services, mask-wearing, sheltering in place, and essential businesses and how they operate.
“We trust the county will act quickly to correct mistakes like these to avoid further confusion and litigation challenging the county’s unconstitutional and unlawful restrictions,” the letter said.
But Jenkins said the county has modeled its recommendations after what Abbott’s office outlined.
“We intentionally modeled the public health guidelines based on the governor’s recommendations, never imagining he did not want his own guidelines followed,” he said. “I ask the public to make decisions based on the recommendations of public health professionals: our lives depend on it.”
He pointed the public to the county’s recommendations at DallasCountyCOVID.org. His office also provided a copy of his supplemental orders, with the references to Abbott’s orders highlighted.
Just days after a judge issued a temporary restraining order that allowed an employee of R+D Kitchen to return to work with a mask on after parent company Hillstone Restaurant Group forbid its employees from wearing them, Jenkins told Fox4’s Shaun Rabb that guidance from Paxton allowed for local adjustments of rules – which meant that the county was allowed to mandate the use of masks and gloves at restaurants and make it a violation if it wasn’t followed.
“The restaurant inspectors can come out and see that and put that down as a violation on the restaurant,” Jenkins told Rabb. “For some smaller cities that is Dallas County [inspectors] and then for larger cities that, of course, is the city themselves.”
On May 8, Jenkins issued an amendment to his “Safer-at-Home” orders, requiring masks and gloves for restaurants, among other things. Jenkins said that individuals would not be fined, but that inspectors could fine the restaurant.
State guidance in Abbott’s orders does say that if staff and patrons cannot maintain a 6 foot distance, face masks should be used.
“Have employees maintain at least 6 feet separation from other individuals. If such distancing is not feasible, measures such as face covering, hand hygiene, cough etiquette, cleanliness, and sanitation should be rigorously practiced,” the guide said.
Lawyers for the Hillstone Restaurant Group employee named Jane Doe also argued that Abbott’s orders mandated the use of masks at restaurants.