Austin and Travis County public health leaders say that they will continue requiring residents to wear masks in public, even though Gov. Greg Abbott lifted his statewide mask mandate starting Wednesday.
The Austin officials didn't, however, say how they'll be able enforce the rule. Abbott's order explicitly said that “no jurisdiction” can impose jail time or other penalties for not wearing a mask. An existing Austin rule establishes fines for up to $2,000 for COVID-19 related violations, but city officials didn't answer repeated questions Tuesday about whether they would impose that fine on violators. Mayor Steve Adler indicated late Tuesday that enforcement, if there is any, will be limited.
If Austin does try to enforce its mask requirement, it could set up a new legal showdown between the state and its capital city. Renae Eze, spokesperson for Abbott, said Tuesday night that the "attorney general’s office is looking into this."
The office of Attorney General Ken Paxton, which successfully challenged Austin and Travis officials' attempts to restrict restaurant operations around the New Year's holiday, echoed that sentiment in a tweet Wednesday.
"We’re looking at every avenue available to stop them," the tweet said.
Austin authorities acknowledged that city governments alone can't impose mask orders, but argued that public health authorities can. Their order, they said, was made through their public health authority. The interim head of that entity, Dr. Mark Escott, recommended that the city remain in Stage 4, which, according to the local guidelines, still calls for wearing masks.
“Wearing a face covering is one of the easiest ways to slow the transmission of disease in our community,” Escott said in a press release. “While vaccine administration is underway, we are still not in a place of herd immunity and need people to wear face coverings in public and around non-household members so we can avoid another surge of cases.”
Adler also issued a statement saying Austin "will continue to enforce masking and all other public health mandates as established independently by" Escott.
“Dr. Escott is the appointed public health physician and expert to whom our community entrusts our public health," Adler said. "His opinions, based on science, and data which further supports CDC guidelines have been consistent and have been and are reflected in the orders he has issued. He is committed to defeating COVID-19 in Austin and Travis County and the city will employ whatever tools are available to support his orders for the sake of all Austin schools, businesses and residents."
In a video message posted to Facebook late Tuesday, Adler said it's a Class C misdemeanor to violate the public health order. But, he said, "we can't enforce our way to compliance."
“There are not enough police officers, deputy sheriffs or code enforcement agents,” he said. “It’s been our policy and practice to lead with education. That’s what we’ve been doing for a full year now, enforcing only the most egregious cases, and I don’t expect anything to change.”
Council Member Greg Casar said he supported the move.
“In Austin, we’re committed to saving lives. Period. If state officials don’t want to do their jobs protecting people from the virus, then we will,” he said in a statement. “This action is both legal and the right thing to do. If state officials choose to sue, they’ll be going out of their way to harm the health of Texans.”
Last week, Abbott announced that the state would open up "100%" starting Wednesday. In addition to lifting the mask mandate, he eliminated capacity limits on businesses, including restaurants, bars and sports venues.
"COVID-19 has not disappeared, but it is clear from the recoveries, vaccinations, reduced hospitalizations and safe practices that Texans are using that state mandates are no longer needed," Abbott said. "Today's announcement does not abandon safe practices that Texans have mastered over the past year. Instead, it is a reminder that each person has a role to play in their own personal safety and the safety of others."
Abbott's announcement was heavily criticized by county judges and mayors in Texas' most populous cities. Fort Worth Mayor Betsy Price, a fellow Republican, called the order “premature.” Houston Mayor Sylvester Turner urged Abbott to reverse course.
More than 40,000 people have died in from the virus in Texas since the pandemic began. The pandemic has particularly affected Black and Hispanic Texans, and advocates have reported that these communities have fallen behind in the vaccination efforts in the state.
The spread of the virus has slowed in the last weeks in Texas, but the state still averages more than 160 deaths daily. Abbott has voiced optimism on the vaccination process, but as of March 8, just 8.5% of Texans had been fully vaccinated.
But other cities do not appear to be following Austin's lead. Mary Benton, a spokesperson for Turner, said Houston has no plans to enforce a mask rule.
"The governor’s order made it clear that cities could not pass any mandate to supersede his rollback, unless the positivity rate reached a certain threshold for consecutive days," said Benton in an email. "Mayor Turner is requiring employees and visitors to wear masks in all city owned facilities, but has not announced plans to require anything similar to Austin’s measure."
In San Antonio, Mayor Ron Nirenberg and Bexar County Judge Nelson Wolff also won’t follow Austin’s measure, but vowed to help businesses that require masks enforce their own rules, the San Antonio Express-News reported.
“If the customer is belligerent or combative, we’re asking the business owner not to take the law into their own hands, to please call the police,” Bexar County District Attorney Joe Gonzales said to the newspaper.
As in Houston, leaders Austin, Dallas, El Paso and San Antonio had already announced that they would still mandate masks inside city-owned buildings, including libraries and convention centers.
Disclosure: Steve Adler, a former Tribune board chair, has been a financial supporter of The Texas 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.