Texas Attorney General Ken Paxton has sued Austin, Texas, and the county that contains it for refusing to lift local mask mandates, following Governor Greg Abbott's executive order ending the statewide mask mandate. Abbott issued the order despite warnings from health officials, who urged local leaders not to reopen prematurely amid the coronavirus pandemic.
"Just as a servant cannot have two masters, the public cannot have two sets of rules to live by, particularly in a pandemic and when those rules carry criminal penalties substantially impacting peoples' lives and livelihood," Texas Attorney General Ken Paxton said at the beginning of his lawsuit, quoting a previous court filing.
Paxton said in his lawsuit that Austin and Travis County officials "insist that they will continue enforcing their business and facemask requirements despite the fact that [the executive order] nullified these provisions," adding, "Defendants know this is wrong."
"The Supreme Court of Texas recently overturned Defendants' last attempt to undermine Governor Abbott's emergency orders in such a manner," Paxton added. "The same result is warranted here."
Despite Abbott's order, which took effect Wednesday, officials in the city of Austin and Travis County said their local mask mandates would remain in effect. Paxton warned Austin Mayor Steve Adler and Travis County Judge Andy Brown on Wednesday that if they did not lift their order, he would sue.
Abbott's executive order also lifted capacity restrictions on businesses, and banned officials from punishing those who defy mask guidance and from limiting business capacity to less than 50%. Private businesses can still require masks, but local officials are no longer able to do so in most cases, according to the order.
The order does allow county judges in "high hospitalization areas" to employ "COVID-19-related mitigation strategies." Paxton, however, argues that this stipulation is "irrelevant" to the mask mandate issue because "there are no high hospitalizations areas in Texas at the moment."
Brown said in a statement Thursday that he will "continue to listen to our public health authority, medical professionals, and the CDC who have consistently said masks save lives." He called it "unfortunate" that the attorney general is "once again failing to make the health of our community his priority."
Austin Mayor Steve Adler indicated on Twitter that he and Brown will challenge the lawsuit. "(We) will fight to defend and enforce public health guidance," he wrote. "Masks save lives."
President Biden criticized leaders in Texas and Mississippi last week for ending their statewide mask mandates before all Americans have access to a vaccine. Mr. Biden said it was "" to believe that "in the meantime, everything is fine, take off your masks."
The Centers for Disease Control and Prevention recommends that everyone wear a mask, "even if you do not feel sick."
"COVID-19 spreads mainly from person to person through respiratory droplets. Respiratory droplets travel into the air when you cough, sneeze, talk, shout, or sing. These droplets can then land in the mouths or noses of people who are near you or they may breathe these droplets in," according to the CDC. "Masks are a simple barrier to help prevent your respiratory droplets from reaching others."
Paxton argues that, under the Texas Disaster Act (TDA), the governor's authority supersedes local authority. "(TDA) charges the Governor — not an assortment of thousands of county judges, city mayors, and local health officials — with leading the State's response to a statewide emergency," he wrote. "Traditional preemption principles and the TDA's plain language dictate that the Governor's emergency orders control over conflicting local orders."
"A local official's power to issue emergency orders is derivative and subservient to the Governor's power," Paxton writes. Since the city and surrounding county previously followed Abbott's emergency order when masks were mandated, Paxton argues, they should continue to do so when that mandate is lifted.
"The State is merely asking this Court to bring Defendants back to their mid-February 2021 position, when they rightfully acknowledged the supremacy of Governor Abbott's emergency orders," Paxton wrote.