AG Paxton seeking Texas Supreme Court ruling over Austin, Travis County dine-in restrictions

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AUSTIN (KXAN) — A Travis County district court judge’s decision Thursday evening will allow orders from the City of Austin and Travis County to stay in effect, keeping the New Year’s holiday restrictions on dine-in services in the city and county.

In an update Friday, Texas Attorney General Ken Paxton said he will make an appeal to the Texas Supreme Court and ask for an emergency stay.

Thursday night following the district court’s ruling for the city, Paxton filed an appeal in a last-minute effort to try and halt the restrictions before they went into effect at 10:30 p.m. That appeal was rejected by the Third Court of Appeals.

“The city and county orders are brazen violations of state law,” a statement from Paxton’s office said.

Gov. Greg Abbott also tweeted his support for businesses staying open Thursday night after the judge’s decision was announced.

“The Governor’s statewide executive order allows food establishments to be open for in-person dining on New Year’s Eve as authorized by the Texas Alcoholic Beverage Commission. They should remain open. Happy New Year!” he wrote.

Austin Mayor Steve Adler released a statement Thursday night as well, saying they’re encouraged the district court supported the order and emphasized the rapid spread of the coronavirus in the community right now.

“The bigger concept is that each of us has the power to protect our neighbors and save lives by the choices we make as individuals. Celebrate at home, order out and tip generously. There’s no better way to bring in the new year than in solidarity with our neighbors,” Adler said in the statement.

The hearing

Earlier on Thursday, 201st District Court Judge Amy Clark Meachum decided to deny the Texas Attorney General’s request for temporary restraining order and temporary injunction on the restrictions. This decision came after a virtual hearing which lasted more than three hours. Meachum then took more than an hour to reach her decision.

In a letter to all the attorneys involved, Meachum wrote the Texas Attorney General’s Office did not demonstrate “a probable right to relief” and did not demonstrate the Austin-Travis County orders showed “imminent and irreparable harm.”

The City of Austin and Travis County released orders Tuesday that restaurants can only offer takeout options from 10:30 p.m. to 6 a.m. from Dec. 31 to Jan. 3. The city also strongly encouraged those restaurants to only offer that drive-thru, curbside pick-up, takeout or delivery services between 6 a.m. and 10:30 p.m.

Travis County Judge Andy Brown released a statement after the ruling noting he issued the county order “based on the advice of our health officials, including Dr. Mark Escott, and the alarming increase of COVID-19 cases in Travis County.”

“Today’s ruling will help our community slow the spread of COVID-19, while allowing businesses to safely continue their operations through takeout, drive-thru, and delivery service options,” Brown said. “I encourage everyone in Travis County to order food for takeout from a local restaurant and to celebrate the New Year safely at home tonight.”

In regards to this hearing involving Austin and Travis County, the state said the judge’s decision will not affect any other cities’ orders. But, it did say it reserves the right to challenge any other city or counties’ rules separately, and said it planned to do so “imminently” in relation to restrictions in El Paso.

During the hearing, the state argued the governor’s emergency order is supposed to supercede local emergency orders that are more restrictive. The governor’s order, GA 32, says restaurants are allowed to offer dine in service, but that the city order does not allow that. The state cited an earlier decision related to El Paso County to support its arguments.

The county and city argued the order was tailored very narrowly and for a temporary time to try to slow the spread of coronavirus. They said no businesses are being told to close and county attorney Leslie Dippel even said they “can stay open 24 hours if they wish.” The county also clarified that people are not required to leave at 10:30 p.m., but restaurants simply must stop serving dine-in customers at that time. However, if someone stays, they must wear a mask.

“They can order takeout, and they can sit down, but they can’t eat at that table?” Judge Amy Clark Meachum asked of people who come in after 10:30 p.m.

“Yes,” county attorney Sherine Thomas clarified.

Mark Escott called as a witness

Dr. Mark Escott, Austin’s interim health authority, was questioned during the hearing. He provided an update on hospitalizations in the area.

Right now in the area, there are 448 people hospitalized, 185 on ventilators and 81 new hospital admissions. He added the moving average of hospitalizations is 68. For context, he shared hospitalizations have increased 91% since Dec. 1.

Escott also shared why the order had been put in place, saying the city didn’t “want to restrict restaurants’ ability to earn money.”

He said people in age groups that are currently seeing a lot of transmission are likely to want to be at restaurants late at night, and that the likelihood of alcohol consumption and a “breakdown of protective measures” like mask wearing and social distancing will likely happen.

Escott said if he were able, he’d restrict restaurants to takeout only to flatten the curve, but that they are “trying to have balance and focus on the most risky time of day.”

“We felt that (order) would help mitigate that risk of large numbers of people crowded together to celebrate and help us flatten the curve,” Escott said.

Background on the lawsuit

On Wednesday afternoon, Texas Attorney General Ken Paxton threatened Austin Mayor Steve Adler with legal action if the city’s new order wasn’t pulled back.

On Wednesday evening, Paxton filed petition for temporary injunction and temporary restraining order in Travis County to stop the order’s enforcement. Both he and Gov. Greg Abbott argue the order violates the governor’s previous mandates.

Following the move, a Travis County judge called a hearing set for 1:30 p.m. Thursday to discuss it.

Mayor Steve Adler said Wednesday he had no plans to rescind the order and added, “We’re going to defend it in court. We hope that we win… if we don’t win I want to remind the community that just because the government says you can do things that make the community less safe doesn’t mean you have to do them.”

Jeff Patterson with the city of Austin says the city’s law department will represent the city at Thursday’s hearing. 

Opposition expressed at press conference

Former Austin City Council Member Ellen Troxclair called a press conference set for noon Thursday to push back against Mayor Adler’s closure and curfew orders.

The businesses that have managed to stay open, they’re hanging on by a thread. They’re pulling themselves up by their boot straps,” Troxclair said. “They are doing everything they can to keep their doors open. Being able to serve customers safely does not change at 10:30 p.m. tonight.”

Representatives from the Attorney General’s Office were also present during Thursday’s press conference.

“The Governor of Texas said his executive order should supersede any conflicting order issued by local officials in response to the COVID-19 pandemic,” said Brent Webster with the Texas Attorney General’s Office. “This is only to the extent that such a local order restrict services allowed by this executive order, let me be clear.”

Several restaurant and bar owners spoke out against the curfew order.

“We gotta get through this, and we have to stop this local regulation,” said Skeeter Miller, Owner County Line. “My average employee tenure is 30 years, so those people are super important to me. We have really spent every dime we have to make sure that we keep them employed.”

“This is an industry right now that is in dire need,” said Justin Berry, a local police officer and a former candidate for Texas House District 47.

A server at Come and Take it, the owner of Vince Young Steakhouse, the owner of El Arroyo, and the owner of Speakeasy also attended.

Austinites hold a press conference in opposition to the dine-in restaurant restrictions over the New Year holiday Dec. 31, 2020 (KXAN Photo/Kaitlyn Karmout)
Austinites hold a press conference in opposition to the dine-in restaurant restrictions over the New Year holiday Dec. 31, 2020 (KXAN Photo/Kaitlyn Karmout)

Celebrations continue on New Year’s Eve

Drinks were poured, and a devastating blast to sales was avoided by several bars and restaurants who chose to stay open. 

Lines formed outside of bars on Rainey Street.

Parking lots filled up quickly on Sixth Street, and it was also shut down to traffic.

Patrick Ruby, the General Manager at the Tipsy Alchemist, said sitting the night out would do real harm for business. 

“Oh, for sure,” Ruby said. “Our entire staff has been relying on this night, and depending on this night to pay bills.”

Others like Mike Houlis chose to celebrate despite the restrictions.

“We feel like we owe it to ourselves,” Houlis said. “For all of us, it’s been a crazy year. So, hopefully we’ll ring in the new year the right way, and obviously we’ll be safe doing that.”

Ruby said they will be doing everything they can to keep everyone safe. 

“We are reservation only, we are following all the COVID-19 restrictions, per the governor’s order.”

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