Ken Paxton sues after Austin bans late on-site dining for New Year’s weekend amid COVID-19 surge

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Texas Attorney General Ken Paxton said Wednesday that he has sued the City of Austin and Travis County, a declaration that came a day after local leaders declared new restrictions for when restaurants and bars can serve customers during New Year's weekend.

Paxton filed a petition for temporary injunction and a temporary restraining order in Travis County District Court targeting orders made by Austin Mayor Steve Adler and Travis County Judge Andy Brown. Citing an increase in COVID-19 cases, they announced that dine-in food and beverage service must be restricted indoors and outdoors from 10:30 p.m. to 6 a.m., starting Thursday and ending at 6 a.m. Sunday. The measure did allow drive-thru, curbside pick-up, take out, or delivery services.

“Mayor Adler and Judge Brown do not have the authority to flout Gov. [Greg] Abbott’s executive orders by shutting down businesses in Travis County and our state’s capital city,” said Paxton in a statement. “The fact that these two local leaders released their orders at night and on the eve of a major holiday shows how much contempt they have for Texans and local businesses."

Announcing the restrictions for Austin at a Wednesday morning news conference, Adler said the order — which carries a maximum $1,000 fine but no jail time — doesn't violate state regulations because it’s “just an operational constraint.” He added that “the reason that we are doing this is because it focuses on the activity where people are together without wearing masks.” Both the mayor and the county judge said they deemed the measure necessary given the increase of cases in the area.

“If the state is not going to act, then communities have to be able to act to protect themselves. Tomorrow, that’s going to be the issue that’s in front of the court,” Adler said on Wednesday evening in a livestream, reacting to the lawsuit. “Even if the court rules tomorrow that everyone has a right under the governor’s orders to go out and take your mask off when you are around other people at a restaurant on Thursday, Friday, and Saturday night, that doesn’t mean that you have to do it. We are asking everyone in this community to really think hard about what they are doing, about what they can do to contribute during this peak time.”

Abbott had tweeted on Tuesday that Adler doesn't have authority to issue such a local order. “My executive order stops cities like Austin from arbitrarily shutting down businesses,” he said. “The city has a responsibility to enforce existing orders, not make new ones.”

But the governor had previously remained silent about similar orders in El Paso County that covered the Thanksgiving, Christmas and New Year's holidays. The attorney general's office didn't immediately respond to a request for comment on why El Paso's orders didn't spark the same reaction.

A spokesperson for the governor said that the already-existing measures have worked in El Paso and the Midland-Odessa region.

“The proven course of action is to enforce the existing protocols. That strategy was effective in slowing the spread over the summer and containing COVID-19, while allowing businesses to safely operate," spokesperson Renae Eze said in a statement. "The protocols work, but only if they are enforced. The State of Texas has assisted with that enforcement by deploying additional TABC officials to ensure compliance with the protocols; but local officials have the ongoing duty to enforce occupancy limits under law, as they did before the pandemic hit."

Earlier on Wednesday, Paxton sent a letter to both Adler and Travis County Judge Andy Brown that said Austin's order was "unlawful and unenforceable" and threatened legal action if they don't "immediately rescind or, at a minimum, modify your orders" so they comply with the state's regulations.

During his press conference, Adler encouraged Austinites to support restaurants through delivery and take out and “tip and overtip, because these people and these businesses are taking a severe and significant financial hit for the greater good, and we as a community can help mitigate that.”

Austin and Travis County officials warned that the area has seen a troubling rise in COVID-19 cases and they are worried about hospital capacity. In the last month, the county's positivity rate — the percentage of tests that come back positive for COVID-19 — and ICU bed usage have almost doubled. New daily cases have more than quadrupled in the same period, according to the county's COVID-19 dashboards.

“Today in Texas, COVID-19 represents one in five of every person hospitalized,” said Mark Escott, interim health authority and public health medical director for the City of Austin and Travis County. “The policies that we’ve had have not worked to curb the spread of the disease … Now it’s the time to reconsider those decisions so that we can protect Texas.”

On Twitter, the Texas Restaurant Association called on Austin businesses to follow Abbott’s guidance and said that “a curfew is not allowed.”

“Restaurants are deeply invested within their communities, and so they continue to do all they can to prevent the spread of COVID-19, often at tremendous cost,” the organization's tweet said. “Closing indoor dining will not prevent holiday celebrations; it will simply move them from highly regulated businesses into completely unregulated spaces at a critical time in our COVID-19 response.”

Last month, El Paso County Judge Ricardo Samaniego announced a similar curfew for Thanksgiving as COVID-19 cases increased in the border county. And earlier this month, Samaniego issued a similar measure for Christmas and New Year's celebrations.

The county has banned all social activities — including restaurant dine-in services — from 10 p.m. to 5 a.m. between Dec. 30 and Jan. 4 but allows take out and drive thru service. After he issued the Thanksgiving order, Samaniego said that he did so after what he said was a “favorable” discussion with Abbott’s office and a representative from the Texas Attorney General’s office.

The U.S. Centers for Disease Control and Prevention has warned Americans to avoid crowds and poorly ventilated indoor spaces and recommended that people stay at home for New Year's Eve or celebrate virtually.

Disclosure: Steve Adler, a former Texas Tribune board chair, and the Texas Restaurant Association have been financial supporters of the Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.