AUSTIN, TX — Texas Attorney General Ken Paxton on Tuesday issued letters to three counties, including Travis, and the mayors of Austin and San Antonio warning some requirements in their local public health orders designed to blunt the spread of new coronavirus are "unlawful" and can potentially confuse residents.
"These unlawful and unenforceable requirements include strict and unconstitutional demands for houses of worship, unnecessary and onerous restrictions on allowing essential services to operate, such as tracking customers who visit certain restaurants, penalties for not wearing masks, shelter-in-place demands, criminal penalties for violating state or local health orders, and failing to differentiate between recommendations and mandates," Paxton wrote in an advisory targeting Bexar, Dallas and Travis counties and singling out Austin Mayor Steve Adler and San Antonio May Ron Nirenberg. Travis County Judge Sarah Eckhardt also was included in the warning letter to Travis County.
Paxton said the local directives "...are unlawful and can confuse law-abiding citizens." In announcing the second phase of a reopening of the state economy, Gov. Greg Abbott made a point to assert his own executive orders supercede those of municipalities, including one that waived the mandatory requirement of wearing a protective face coverings while out in public — a measure that is seen by health officials as the most effective tactic to blunt the spread of an illness for which there is no vaccine.
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Paxton suggested local guidance is at odds with the governor's: “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," he wrote. "These letters seek to avoid any public confusion as we reopen the state,” said Attorney General Paxton. “I trust that local officials will act quickly to correct any orders that unlawfully conflict with Texas law and Governor Abbott’s Executive Orders.”
In his letter to Adler and Eckhardt, the attorney general begins: "It has come to our attention that Travis County and the City of Austin have issued local public health orders that exceed the county's and city's lawful authority, and that are likely to confuse residents," Paxton wrote. "This letter identifies some of the concerns with your recent orders. We trust you will act quicly to correct mistakes like these to avoid further confusion and litigation challenging the county's and city's unconstitutional and unlawful restrictions."
The attorney general took particular issue with local directives aimed at houses of worship. which he says "unlawfully trample religious freedom." Paxton said the local rules are tantamount to "unlawful restrictions" that compromise religious liberty.
"In addition, unlike the governor's orders, which respects [sic] the robust constitutional and statutory rights protecting Texans' free exercise of religion," Paxton wrote, "the county's and city's orders unlawfully trample religious freedom," adding the directives open up the city and county to legal liability as a result.
Paxton continued that limiting access to a house of worship "...violates the religoius liberty guaranteed by the federal and state constitutiosn and the Texas Religious Freedom Restoration Act. all of which ensure that Texans can worship and freely exercise their religion according to dictates of their own consciences, and not limtied by overbearing government action."
Paxton explains his objection to local directives aimed at houses of worship is rooted in the language of the health-related suggestions. The governor recently proclaimed religious services (along with commercial construction) to be "essential services" immune from work stoppage due to the pandemic.
"Yet your ders provide that essential services, such as houses of worship, "shall" comply with certain restrictions, including:
- not making certain employment decisions based on 'sexual orientation' or 'gender identity';
- prohibiting certain employees and members of the pubic from providing or obtaining essential services, unless social distancing and face covering requirements are followed;
- creating and implementing an infectious disease response plan; and
- minimizing or canceling in-person meetings and conferences.
Reached by Patch via email, Adler suggested the attorney general was politicizing the pandemic through a politically ideological lens. Eckhardt officially stepped down as county judge on Tuesday ahead of her pursuit of a Texas Senate seat.
"Up to this point, we have avoided the naked politicization of the virus crisis," Adler wrote in an email to Patch. "I will not follow the AG down that road. The city’s order complements, incorporates, and does not conflict with the governor’s order. We will continue working to keep our community safe to the fullest extent allowed by law."
Read the letter to Dallas County here
Austin adjusted its local "stay at home" orders to reflect superceding changes made by the Abbott in allowing for unfettered activity at houses of worship and construction sites — in spite of the growing rate of illness — to reflect the governor's orders. (See: Coronavirus: Austin Clarifies Rules After Governor's Orders.)