AG Paxton Sues Austin Over Restaurant Industry Pandemic Curfew

AUSTIN, TX — The Texas attorney general on Wednesday sued the City of Austin and Travis County after a local order was implemented shortening restaurant hours in an effort to curb the coronavirus pandemic.

The litigation makes good on a threat made by AG Ken Paxton hours after local leaders on Tuesday announced implementations starting Thursday of what amounts to a four-day restaurant industry curfew over the New Year's holiday period. Paxton and Gov. Greg Abbott said the local order runs afoul of a previous gubernatorial order overseeing restaurant operations largely centered on occupancy limits.

“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,” Paxton said in a subsequent prepared 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. 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.”

Read Paxton's lawsuit against Austin

In an effort to halt the local order one day before its implementation, Paxton filed a petition for temporary injunction and a temporary restraining order in Travis County District Court. Paxton telegraphed his plan to sue in a letter to Austin and Travis County leaders earlier on Wednesday buttressing his claims of a gubernatorial order violation. "Again, you must immediately rescind or, at a minimum, modify your orders to fully comply with [Executive Order] GA-32," Paxton wrote. "We are open to conferring with you before 12:30 p.m. today. Otherwise, I, on behalf of the State of Texas, will take legal action against you."

Previous coverage: Restaurant Curfew Issued In Austin Amid Coronavirus

Abbott also expressed displeasure over the local order, writing on Twitter: "This shutdown order by Austin isn't allowed. Period. My executive order stops cities like Austin from arbitrarily shutting down businesses. The city has a responsibility to enforce existing orders, not make new ones."

Austin Mayor Steve Adler and Travis County Judge Andy Brown joined forces in issuing the regional order, citing spikes in COVID-19 cases as the reason for the restrictions. The measure dictates 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 allows drive-thru, curbside pick-up, take out, or delivery services outside the altered schedule.

View city orders here

View county orders here

Adler and Brown headed a Wednesday morning news conference arguing that the rules are not tantamount to a restaurant shutdown as suggested by Paxton and Abbott, and therefore does not run afoul of the latter's order. Rather, both said, the order regulates hours of operation to avoid the gathering of crowds that could potentially spread respiratory illness further.

Some observers have noted the governor did not object after El Paso leaders implemented similar measures toward the same goal of thwarting illness spread. The Texas Tribune noted the governor remained silent after a similar step in El Paso that covered the Thanksgiving, Christmas Eve and New Year's holidays. Paxton did not immediately respond for comment when asked by the Tribune to reconcile his action against Austin after not having sued El Paso for a nearly identical measure.

The local order comes with a punitive $1,000 fine for violators, but no jail time. Adler insists the measure is "...just an operational constraint" still in compliance with Abbott's previous order. He added the move was prompted by "...activity where people are together without wearing masks."

“We are now facing our most dangerous surge,” Adler said during the news 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.”

After Paxton threatened to sue hours after the local order was announced, Abbott tweeted on Tuesday that the mayor has no 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.”

It was unclear late Wednesday if Paxton's lawsuit will have the effect of halting the local order from taking effect on Thursday.

Austin and Travis County one week ago moved to the top Stage 5 alert level for coronavirus, the red-colored top tier of advisories indicating uncontrolled community spread of the virus. On the same day Paxton sued the city for its illness-curbing effort, Austin Public Health reported 546 new coronavirus cases with four additional deaths — raising the cumulative number of confirmed cases to 50,194 and pushing the overall fatality total to 548 since the pandemic began.