Greg Abbott says Austin can’t ban late on-site dining for New Year’s weekend, AG Paxton files lawsuit against the city

Mayor Steve Adler said the severity of the COVID-19 situation in Austin requires more drastic measures. El Paso County announced a similar order earlier this month.
Positive messages spray painted on a business on Austin's Sixth Street in late March. Many...
Positive messages spray painted on a business on Austin's Sixth Street in late March. Many businesses closed their doors on the strip during the spring because of the COVID-19 pandemic.(Miguel Gutierrez Jr./The Texas Tribune)
Published: Dec. 30, 2020 at 5:10 PM CST
Email This Link
Share on Pinterest
Share on LinkedIn

TEXAS TRIBUNE - With COVID-19 cases surging, Austin’s mayor announced a ban on restaurants and bars serving customers on site during late night and early morning hours throughout the New Year’s weekend, but Gov. Greg Abbott quickly attacked the move and said the city isn’t authorized to exceed his statewide restrictions.

According to the city’s order, dine-in food and beverage service will be restricted both indoors and outdoors from 10:30 p.m. to 6 a.m. starting Thursday and ending at 6 a.m. Sunday. Those businesses can continue to offer drive-thru, curbside pick-up, take out, or delivery services.

“We are now facing our most dangerous surge,” Austin Mayor Steve Adler said during a Wednesday press conference. “We could be facing something more severe and more extreme than what we have seen in the past. I want to make real clear that this is not about government and this is not about politics.”

Abbott 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 has remained silent about similar orders in El Paso County that covered the Thanksgiving, Christmas and New Year’s holidays. The governor’s office did not immediately respond to a request for comment from The Texas Tribune.

On Wednesday, Texas Attorney General Ken 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.

Austin’s order, which carries a maximum fine of $1,000 for violators but no jail time, does not violate the state’s regulation because it’s “just an operational constraint,” Adler said, adding that “the reason that we are doing this is because it focuses on the activity where people are together without wearing masks.”

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.

On Wednesday afternoon Texas Attorney General Ken Paxton announced he was filing a petition for a temporary injunction and temporary restraining order to halt the enforcement of the orders.

“Mayor Adler and Judge Brown do not have the authority to flout Gov. Abbott’s executive orders by shutting down businesses in Travis County and our state’s capital city,” said Attorney General Paxton. “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. They think breaking the law is a game of running the clock before anyone can do anything about it. Texas is a law-and-order state, and these are lives and livelihoods that are at stake. I’ll continue to defend them against the arbitrariness of the mayor and county judge.”