As Abbott Blows Off COVID, Austin Just Wants to Stay Alive
The unmasking commences and the governor goes after his own constituents yet again
In his haste to ditch the frozen bag of waste left in his lap after the deadly human-made catastrophe prompted by Winter Storm Uri, Gov. Greg Abbott sought to fast-forward to the end of the COVID-19 pandemic by decree. His latest executive order, GA-34, has lifted all restrictions on business operations and mask requirements, in the face of urgent and specific pleas not to do so by President Biden, his White House adviser Dr. Anthony Fauci, and the U.S. Centers for Disease Control and Prevention, along with a number of Texas business leaders, local officials, and essential workers who fear they won't make it to the day they can be vaccinated.
Masks and capacity limits can be reinstated temporarily in regions where the disease that's killed more than 44,000 of Abbott's constituents continues to strain local hospitals, but Abbott signaled his intent to "restore livelihoods and normalcy for Texans by opening Texas 100%" on March 2 – Texas Independence Day. The rollback itself took effect March 10, just in time for spring break throughout much of the state. The move brought Texas in line with other red states whose governors (such as Florida's Ron DeSantis and South Dakota's Kristi Noem) have touted their lax COVID measures as they've sought attention from the Fox News universe, which Abbott would like as well.
Predictably, many news outlets in Texas – along with many national and international news outlets staring blankly at Texas – were filled last weekend with scenes of egregious maskless clownery. Billy Bob's in Ft. Worth welcomed 3,000 partyers (which, the destination honky-tonk pointed out, is only 50% of its capacity); "massive" crowds were reported on the beaches of South Padre Island; and a conservative Jewish group in Collin County held a mask-burning party featuring hair salon owner Shelley Luther, whose brief stint in jail for flouting local COVID-19 orders last spring made her a MAGA heroine and a surprisingly viable candidate for the Texas Senate.
No Worries, We'll Wait
At the same time, many more people and establishments were not feeling the freedom. H-E-B, whose reputation as Texas' favorite company has only continued to soar throughout the pandemic, briefly said it would no longer require customers to wear masks, while still making them mandatory for employees and vendors. This seemed an understandable, if unfortunate, choice to make, better than forcing the grocer's nearly 100,000 Texas employees to demand compliance with rules that too many people, in an open-carry state, consider an affront worthy of violent resistance.
But the chain, which is privately owned, reversed itself as other major retailers – including Whole Foods, Kroger, Walmart, Trader Joe's, Best Buy, CVS, Walgreens, Home Depot, Costco, and the shopping centers and outlet malls owned by Simon Property Group – all said they were fine with maintaining the masked status quo in Texas. Like many local businesses in Austin, some of these major players indicated that until their front-line workers, who've been deemed "essential" by Abbott's prior orders for the entire pandemic, were eligible to be vaccinated, they saw no need to have this conversation. Those workers themselves, in Austin and in other cities, staged protests of various sizes against Abbott's cavalier approach to their health.
Most of the state's big-city Democratic leaders are exhausted by their endless conflicts with Abbott and his frenemies, Lt. Gov. Dan Patrick and Texas Attorney General Ken Paxton, on measures related to COVID and everything else. As the pandemic's winter spikes abate and more Texans are vaccinated, there is some willingness to just wait this out. In Travis County, the local politics are different, and there's more pressure on leaders to hold firm as best they can to keep people alive in the face of Abbott's recklessness. To that end, the city and county let it be known that local COVID restrictions, as set forth in the emergency public health orders promulgated by Interim Health Authority Dr. Mark Escott, would remain in place and that violating them would continue to be a class C misdemeanor subject to fines (but not jail time; Abbott took that off the table after Luther's case blew up Fox News), as provided by local ordinance.
Them's Fighting Words
This spurred Paxton to demand that Austin and Travis County get with the program by 6pm on March 10 or else, and, the next day, to file suit against the city and county, and the day after that to force a hasty virtual hearing before District Judge Lora Livingston to seek an immediate injunction against Escott, Mayor Steve Adler, and County Judge Andy Brown. That did not happen; the case will proceed to trial at a scheduled three-hour hearing on March 26.
Saying she didn't "know that it is fair to any defendant" to be forced to respond to a suit filed less than 24 hours prior, Livingston, the longest-serving judge in Travis County, opted instead to allow both sides to make their best case. "I don't know why there's any emergency," she noted. "People have been wearing masks for a year." While his minions pleaded their case, Paxton supplemented his mean tweets and Henery Hawk theatrics with hits on Fox News, Newsmax, and some MAGA-adjacent podcasts.
The A.G. feels cocky, and makes triumphal claims in his lawsuit itself, since he's two for two in past cases challenging COVID-19 restrictions, in Austin over New Year's weekend and earlier in El Paso. In both instances, district judges in those solidly blue counties backed local efforts to contain severe COVID spikes but were overruled by more pliable GOP appellate courts. Livingston, Adler, and Brown all expect this case to follow a similar path.
"Judge Brown and I will fight to defend and enforce our local health officials' rules for as long as possible using all the power and tools available to us," Adler said in a statement issued Thursday night after Paxton's lawsuit was filed. "We promised to be guided by the doctors, science and data as concerns the pandemic and we do everything we can to keep that promise." The mayor noted that Abbott also said he'd be guided by data and doctors, until he wasn't. The governor did not run his GA-34 intentions past either of the physicians he tapped as his COVID advisers last year (members of the "Strike Force to Open Texas," which, it turns out, was quietly disbanded months ago), nor state health commissioner Dr. John Hellerstedt, who let this fact slip during a House hearing under questioning from state Rep. Erin Zwiener, D-Driftwood.
Irreparable Harm to Whom?
In committing to issuing a ruling promptly after the March 26 hearing, Livingston acknowledged, "It's a big deal to all of you, I know, and to the public." It wasn't a big enough deal, though, to persuade her that keeping Escott's rules in place would cause "irreparable harm" to the state of Texas, even if Paxton was highly likely to succeed on the merits of his case. Those are the standard claims made when seeking a pretrial injunction; in his suit, as in his prior case against El Paso County, Paxton argues that local leaders' insolence in disobeying Abbott's orders is intolerable, regardless of the details.
Thus, even if Adler is correct in saying, "Masks work! The attorney general is simply wrong," it doesn't matter. Still, Adler and Brown have no power to force Escott to change his rules, although they could replace him as health authority were they so inclined. Changing the enforcement ordinance would require a Council vote at a public meeting that's properly posted, under the terms of state statute that Paxton's own office enforces.
Even though the mask wars have become a highly partisan conflict, plenty of Texas conservatives as well as liberals have misgivings about this expansive view of Abbott's powers. Several dozen bills have been filed in the 87th Texas Legislature by members of both parties to restrict, or at least clarify, the governor's ability to rule by decree during a disaster, though none have yet made it out of committee.
Existing Texas statute broadly grants local health authorities power to make (and cities and counties to enforce) rules to safeguard the public. "Wearing masks is perhaps the most important thing we can do to slow the spread of the virus," Adler said in his statement. "We are not aware of any Texas court that has allowed state leadership to overrule the health protection rules of a local health authority." (Paxton's prior victories overturned local executive orders by Adler and El Paso County Judge Ricardo Samaniego, not the underlying rules issued by Escott and his El Paso counterpart.)
In past spats with Austin and other Texas cities, Paxton has blazed through multiple courts, both state and federal, to get his desired relief as quickly as possible. But so far (as the Chronicle goes to press March 17), he and Abbott have not sought to preempt the March 26 trial. Indeed, their attention has largely drifted elsewhere, seeking to light fresh fires under the haunches of Fox News viewers on their couches at home, over border crossings, "election integrity," and the usual culture warfare. And Abbott is still holding that frozen bag of waste; on Tuesday, he "asked for and accepted" the resignation of the last remaining member of the state's Public Utility Commission, as last month's freeze continues to burst the state's political pipes.