With Gov. Greg Abbott’s apparent blessing, Bexar and Hidalgo counties have imposed a new mask rule for local businesses, saying they must require employees and customers to wear masks when social distancing isn't possible. The move appears to open a new way for local officials to require mask use in certain public spaces after Abbott stymied prior efforts by local officials to put the onus on residents.
Bexar County Judge Nelson Wolff's and Hidalgo County Judge Richard Cortez's orders comes after Abbott issued an executive order June 3 banning local governments from imposing fines or criminal penalties on people who don't wear masks in public.
Wolff's order states that, starting Monday and running through the end of the month, businesses in Bexar County must require face masks "where six feet of separation is not feasible" before the business risks facing a fine of up to $1,000. Cortez's order states businesses in Hidalgo County will risk being fined starting Saturday and will remain in effect until further notice.
The orders also state that, consistent with Abbott's executive order, "no civil or criminal penalty will be imposed on individuals for failure to wear a face covering." Later in the day, San Antonio Mayor Ron Nirenberg signed an update to his emergency health order to express support for and adopt Wolff's order, saying that, as the number of coronavirus cases increase in the city, "masks are our best line of defense."
"Judge Wolff’s order is not inconsistent with the Governor’s executive order," said John Wittman, a spokesman for Abbott. "Our office urges officials and the public to adopt and follow the health protocols for businesses established by doctors" that are available online.
In an interview Wednesday with KWTX, Abbott said that local officials just needed to read the plan issued by the state to see the orders they could issue in compliance with state directives.
Wolff "finally read what we had written and what they now realize they are capable of doing is that we want to make sure individual liberty is not infringed upon by government, and hence government cannot require individuals to wear masks," Abbott said.
"Local governments can require stores and business to require masks. That’s what was authorized in my plan," Abbott added. "Businesses … they’ve always had the opportunity and the ability, just like they can require people to wear shoes and shirts, these businesses can require people to wear face masks if they come into their businesses. Now local officials are just now realizing that that was authorized."
Following suit, Austin Mayor Steve Adler said Wednesday in a statement that Abbott has "given us a path and we will act consistent with his statement."
"Wearing masks is important — to our health and to opening up the economy," Adler said. "We will be entering an order directing businesses to come up with a simple safety plan over the next several days."
By Wednesday evening, Adler had signed an order mirroring Wolff’s that will take effect on Thursday and run through Aug. 15. Businesses in Austin can now be fined up to $1,000 for not complying with mask rules.
Local leaders have been calling for weeks for the ability to impose more strict mask orders, but Abbott never publicly mentioned that this option was available. On Tuesday, nine mayors from Texas' biggest cities wrote a letter to Abbott, urging him to grant them the authority to mandate face masks in their own cities in order to prevent the spread of coronavirus. Officials from some of the state's biggest urban ares said Wednesday they would explore whether to impose a similar order in their jurisdictions.
"I’m pleased that the Governor has changed his mind. I’m asking our county lawyers and business leaders to look at this and plan to make a proposal for the Commissioner’s Court to look at very soon," Dallas County Judge Clay Jenkins said in a statement, who said he's already looking into whether he'll follow suit.
A spokesperson for Harris County Judge Lina Hidalgo said they are checking with the county attorney’s office on Wolff's order, adding that "we're not any safer today than we were in March. There is no vaccine. No cure. We remain very concerned about the trajectory of hospital admissions."
Texas Attorney General Ken Paxton's office had already warned officials in big cities, including San Antonio, to roll back “unlawful” local emergency orders that featured stricter coronavirus restrictions than those of the state, while hinting of lawsuits if they do not. Paxton's office declined to comment on Wolff's order Wednesday.
"When people go out and about, as they’re walking around town, they don’t need to wear a face mask, but when they do go into a store or other business, those businesses can require, and that’s exactly what it looks like local governments will begin to do," Abbott told KWTX.
Mark Escott, the interim health authority for Austin and Travis County, said that the city and the county are interested in how they can better enforce the wearing of face mask.
"We certainly do not believe that that there’s any role for criminalization of some of these items, but it is helpful for us to be able to inform restaurant and bars and other businesses that it’s okay for you to require masking. That it’s enforceable, if you decide as as your business to not allow people in without masks," Escott said Wednesday. "I think it’s an absolutely responsible thing to do for businesses to take a stand, not only to protect other customers in that business but to protect their employees."
But the Bexar County order did receive some pushback from the business community. National Federation of Independent Business State Director Annie Spilman criticized Wolff's order in a statement Wednesday, saying it "opens struggling small businesses to hefty fines and potential litigation."
"Texas business owners are deeply concerned about the possibility of trial lawyers exploiting the pandemic for financial gain. When we surveyed our Texas members this spring about the challenges they face as the state reopens, 71% said increased liability related to the pandemic," Spilman said. "The shutdown had a devastating impact on the Texas economy. Orders like Judge Wolff's puts owners in the difficult position of policing their customers while trying to reopen and rebuild their businesses. That's why we're asking our elected leaders here and in Washington, D.C. to take steps to protect small businesses from predatory lawsuits that target them when they're at their most vulnerable."
Patrick Svitek, Meena Venkataramanan, and Reese Oxner contributed to this report.
Clarification: This story has been updated to note that Austin's mask rules allow for businesses to be fined up to $1,000.