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Abbott says his order overrides local disaster rules

Tuesday, April 28, 2020 by Jo Clifton

Gov. Greg Abbott announced Monday the first phase of reopening the state for business in response to an apparent lessening of Covid-19 cases that have sent the nation into an economic tailspin. Abbott claimed he had the authority to allow the majority of businesses to operate in a limited capacity, in spite of any local orders to the contrary.

Travis County commissioners and Austin City Council are both meeting today and Covid-19 will be on both agendas.

Under Abbott’s order, most businesses except for barbershops, hair salons, gyms and bars will be authorized to start doing business Friday on a limited basis. Restaurants and other retail establishments will be allowed to operate at 25 percent of capacity. The governor released a report from the task force he created outlining rules and recommendations related to business and the coronavirus.

Several sections of the report, including one addressed to all employers, recommends that they “consider having all employees wear cloth face coverings (over the nose and mouth). If available, employees should consider wearing nonmedical-grade face masks.”

The governor did not mention face masks in his presentation, leaving it to Lt. Gov. Dan Patrick, who said face masks are recommended, but not required. Travis County Judge Sarah Eckhardt and Austin Mayor Steve Adler put out an order April 13 requiring everyone over 10 years old to wear a face mask when out in public, with certain exceptions.

Harris County Judge Lina Hidalgo issued a similar order for her county on Sunday.

In response to a question from a reporter about the Harris County order, Gov. Abbott said, “As we lay out in the booklet, page after page after page, we strongly recommend that everybody wear a mask. However, it’s not a mandate.” He said there is no penalty or fine for not wearing a mask. “My executive order supersedes any local order … we make it clear that no jurisdiction can impose any kind of penalty or fine ….”

Attorney and former Travis County Judge Bill Aleshire disagrees, insisting that Eckhardt, Adler and Hidalgo have the authority to issue such orders and that the governor’s order does not override local emergency regulations.

Aleshire cited Texas Government Code sec 418.108(g), saying the county judge has the authority independent of the governor to “control the movement of persons and the occupancy of premises in that area.”

Aleshire said Abbott is acting “kind of like Trump, Abbott thinks he’s in charge of everything. That’s not what the emergency management law says.”

Eckhardt said she had just received the governor’s order when the Austin Monitor contacted her Monday afternoon. She said, “I will write the tightest best order I possibly can that is measured by science … and its impact.”

She pointed out that the governor’s current order does not expire until midnight Thursday. She would not give an opinion about whether the law would require Travis County to adopt Abbott’s policy recommending but not requiring face masks. She said Abbott knows that Travis County has the best epidemiological data in the state, because Travis has had more testing than other places in Texas “and we have more data about our hospitalizations and the effect that stay-at-home has had. So we’re in a better position to prove” whether Travis County is winning the fight against Covid-19 or its position is deteriorating.

Council Member Kathie Tovo said Monday evening that the matter would certainly be a topic of conversation when Council gets together today. She said, “It’s our sworn responsibility to protect the health and safety of Austin residents … so to the extent that the governor is issuing an order that we believe is not as strong as our order to protect the health and safety of our residents, I would think we’re on solid ground insisting on it.”

Council Member Alison Alter told the Monitor via text: “I’m reviewing the information and consulting with our legal and public health staff. For now I would encourage everyone to thoroughly review the best practices recommended in the governor’s report which continues to urge all people who can, but especially those over the age of 65, to remain at home, to wear a mask, and to stay 6 feet away from others outside your household. The governor may not be requiring these things, but we must act responsibly to preserve our public health even as we sustain our economy.”

Council Member Leslie Pool told the Monitor via text, “We share the governor’s eagerness to be moving toward recovery but remain cautious and are relying upon his pledge to base decisions to reopen our communities on data and doctors. Because our residents have fully embraced the safety measures that are helping to keep our most vulnerable neighbors safe, we have a lot to be grateful for here in Austin. At the same time, we need to remember that we’ve also had terrible losses in our community from this virus. In light of that, we need to remain open to potential adjustments to ensure our residents’ safety should we see our infection numbers rise precipitously.”

In a statement to the press, Council Member Greg Casar had strong words about Abbott’s emergency action. “We all want to open our small businesses, but we must do so in a way that prioritizes the health and safety of all. Today’s action by the governor does not do this. The governor has put us on a path toward more coronavirus hospitalizations, before significantly ramping up testing or giving communities the resources we need to win this battle, and with no real plan on how to protect our seniors and those with underlying health conditions. If our hospital rooms begin to fill up because of the governor’s actions, our health officials will likely recommend that we shut down businesses again,” Casar’s statement read. “If we get that recommendation, we will take clear and decisive action to protect Austinites. We will not hesitate to use our legal authority under the Texas Constitution to shut down the city again and resume our shelter-at-home policies, regardless of what the governor has to say about it.”

“I have a very important message for those people who are immunocompromised, older, and those who have serious underlying health conditions. The governor is putting you at risk without a plan for your health and safety,” he continued. “If you fall into one of these vulnerable categories, please stay at home as much as possible, regardless of the governor’s order. I am calling on all employers to keep vulnerable people working from home, to the greatest extent possible.”

As of 6 p.m. Monday, Travis County was reporting a total of 1,464 cases, up from 1,412 the day before, with 42 deaths.

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