How the State of Texas Worked to Block Austin’s New Year’s Dine-In Curfew

Austin and Travis County officials’ restrictions aimed at diminishing the spiking COVID-19 curve in Texas were eventually thwarted by Texas state officials over New Year’s weekend, though dine-in services were still curtailed on New Year’s Eve.

On December 29, Mayor Steve Adler and Travis County Judge Andy Brown issued orders requiring restaurants and bars to halt on-site services nightly from 10:30 p.m. to 6 a.m. during the long New Year’s holiday weekend — effectively canceling all in-person New Year’s Eve parties — but allowing takeout and delivery services during those hours. It took Texas Attorney Gen. Ken Paxton three attempts before he effectively blocked Austin and Travis County’s orders to implement a New Year’s weekend dine-in curfew, but the results came after restaurants and bars were shut down on New Year’s Eve.

As soon as the city and county orders were released on December 29, Texas Gov. Greg Abbott said that he saw it as a violation of his executive order allowing restaurants to reopen for dine-in services. In a press release, Paxton wrote the abruptness of the orders by the mayor and the judge “shows how much contempt they have for Texans and local businesses,” and that “these are people’s lives and livelihoods that are at stake.”

The timing of the order — two days before New Year’s Eve — didn’t give restaurants and bars enough time to adjust their holiday plans, leaving them with unused perishables and products during a time when the industry already runs on notoriously thin margins. But it also came at a time when COVID-19 cases are climbing; Travis County’s positivity rate is 12.7 percent as of late December, the seven-day-moving average of hospitalizations is 77, and daily new cases since the new year have been nearly above 400 each day so far (there was a total of 752 new cases on January 4). Numbers related to New Year’s Eve gatherings won’t show up until two weeks later, but Interim Austin-Travis County Health Authority Dr. Mark Escott predicts that the area will run out of ICU beds by mid-January, as reported by Statesman.

Adler and Brown consulted with local health experts and doctors in order to figure out how they could decrease the potential spread of the virus. Since people are allowed to take off their masks while seated at restaurant and bar tables, it made sense to curtail dine-in service, Adler said to Eater.

The mayor said during a December 30 press conference that the order was a “narrowly tailored order that focuses on operational changes to protect against the most dangerous situation” under the consultation of the city’s lawyers. He told Eater later that they “tried to use language that was not objected to by the state in El Paso and San Antonio that would seek to limit some of that risky behavior.” He also wanted the order to work as a message to Austininties to stay home voluntarily.

Adler said that he wished they had given more notice with the order, but it had to be done. When the order was issued, he shared that ICU use was up by 70 percent in the previous week. “If we had known ahead of time that was going to happen, we could have acted sooner,” he said. To help support these restaurants, Adler and Brown said that people should still order takeout and delivery and tip generously.

The day after the order was issued, Paxton shared his plans for filing a lawsuit against the city and county if it wasn’t revoked. He proceeded to file the lawsuit with temporary measures blocking the order. The suit went in front of the 201st Civil District Travis County Court on New Year’s Eve. State District Judge Amy Clark Meachum ruled in favor of the city and county, saying that “the State has not demonstrated a probable right to the relief sought nor imminent and irreparable harm,” according to the Texas Tribune.

Displeased with the ruling, Paxton immediately filed an appeal for an emergency order to the Third Court of Appeals. He wrote that the orders are still “brazen violations of state law.” Later that evening, the Texas Third Court of Appeals denied this second appeal.

Abbott and Paxton weren’t happy with those outcomes. Despite the rulings, the governor’s office released a statement that evening saying that restaurants and bars “should remain open,” and signed off with a “Happy New Year!”

“I was surprised that the state leadership told businesses they could stay open,” Adler told Eater, “even though there was a ruling by the district court that said otherwise, that, at that point, was the law of the land. It seems Trumpian to me.”

Courtesy of City of Austin

While the order banning on-site services was still active on New Year’s Eve, several bars remained open for service, as reported by Statesman and KXAN. The Austin Fire Marshal issued three citations over the long weekend to businesses that had received previous citations, according to a city of Austin spokesperson. Eater has submitted a request for further details. Likewise, the Austin Code Department noted that there were 23 businesses that violated the order on New Year’s Eve, all of which are “pending the legal determination of the recent mayoral order,” as shared by the spokesperson. Violations of the citation are meant to result in fines of no more than $1,000.

Paxton has taken issue with how local officials have “exceeded their powers’’ during the pandemic, and specifically cited El Paso in October. That’s when El Paso County Judge Ricardo Samaniego attempted to issue a shutdown of nonessential businesses (including restaurant dine-in services) during the crisis-level surge of virus-related hospitalizations in the West Texas city. The order was blocked by Paxton.

However, since then, El Paso issued similar orders restricting social activities and on-site dining services nightly during Thanksgiving, Christmas, and New Year’s Eve. Samaniego issued the Thanksgiving order after a “‘favorable’ discussion” with the governor’s and attorney general’s offices, as reported by the Texas Tribune. Adler notes to Eater that the Austin/Travis County order used similar language.

On New Year’s Day, Paxton took the Austin/Travis County suit to the Texas Supreme Court. The state entity ruled in favor of the state, which meant that the order, which had two evenings remaining, was canceled.

In a statement regarding this victory, Paxton wrote that “local declarations cannot order needless shutdowns in conflict with the governor’s order, and these orders demonstrated a blatant contempt for the citizens and businesses of our great state.”

Travis County Judge Andy Brown expressed his disappointment with the ruling because “it limits our ability to slow the spread of COVID-19 in our community,” as he shared in a statement. He still urged people to stay home and support restaurants by ordering takeout, as he and his family did for New Year’s Eve from Hyde Park Italian restaurant Asti.

“I recognize that this virus is causing huge injury and damage,” said Adler to Eater, “both from a public health standpoint [...] but also from a business standpoint where people are facing the loss of business and the potential ending of their business.”

He continues: “We’re repeatedly being confronted with having to choose between two alternatives, both of which you don’t want. Ultimately, if our city is to reverse this uncontrolled speed of the virus, it’s not going to be because of orders or rules, it’s going to be because there are enough people that are willing to do what it takes to stop the transfer of the virus. And we just need as many people as we can to do that, individually and as businesses.”

• Austin won’t be allowed to restrict dining-in at restaurants, Texas Supreme Court says [Texas Tribune]
• Texas Supreme Court blocks Austin, Travis County dine-in curfew [Statesman]
• AG Pax­ton Sues City of Austin, May­or of Austin, Travis Coun­ty, and Coun­ty Judge for Imposing Unlaw­ful Shut­down Orders [Texas Attorney General]
• ‘We just want consistent, clear leadership’: Austin restaurant, bar owners frustrated over curfew [Austin 360]
• Hospitals will likely reach ICU capacity by next week, Austin-Travis County health chief says [Statesman]
• AG Pax­ton: Texas Supreme Court Ends Unlaw­ful City of Austin and Travis Coun­ty Shut­down Orders [Texas Attorney General]