AUSTIN (KXAN) — The Texas Supreme Court has blocked Austin and Travis County’s orders restricting restaurants’ operations to takeout only between certain hours overnight.
The decision came the evening of Jan. 1, after the rules went into effect on New Year’s Eve, hours after a district court judge sided with Austin and Travis County in allowing the restrictions to happen.
The Supreme Court sided with the Texas Attorney General’s request to halt enforcement of the rule while the case is going through the appeals process.
On Tuesday, Austin and Travis County announced that restaurants could only offer takeout options for food between 10:30 p.m. and 6 a.m. from Dec. 31 to Jan. 3. It said this narrow and temporary order was targeted at places and times where people might gather without taking precautions to celebrate the new year.
The announcement received swift pushback from Gov. Greg Abbott and Texas Attorney General Ken Paxton, who argued that the order was more restrictive than Abbott’s emergency order and therefore not allowed.
The matter went before a Travis County district court judge on Thursday afternoon, who sided with Austin and Travis County and allowed the restrictions to remain in place. Paxton then filed an appeal, which was rejected by the Third Court of Appeals. That’s when Paxton turned to the Supreme Court and asked for what’s called a petition for writ of mandamus that would halt enforcement of the order while the court made its decision on its legality. The Supreme Court’s Friday order granted that request without hearing any oral arguments.
However, several bars on Sixth Street and Rainey Street stayed open at the urging of Abbott and other Texas leaders, and a KXAN photographer witnessed crowds in both locations.
City code enforcement officials, police and those with the fire marshal’s office were out patrolling for violators. The Fire Marshal told KXAN they noted at least two establishments in violation of the curfew order, as well as other COVID-19 safety orders including mask mandates.
Earlier on Friday, Mayor Steve Adler told KXAN as many as 20 citations could be given. At the time, city officials said the citations were expected to be filed Monday, but they didn’t have a total number, due to the fact that so many different city and county agencies were responding to enforce the orders.
It is likely the final decision in the appeal will affect whether violators of the city order will have to pay the fine.
Officials also said earlier on Friday, even if the Texas Supreme Court grants an emergency stay to Paxton, officers will still be out enforcing the previous mayoral order. City data shows they fielded nearly 20 complaints from the 311 line about potential mask, social distancing and capacity violations at businesses — and even some residences an apartments — on New Years Eve. So far, that data shows no citations resulting from these investigations.
The Texas Restaurant Association said they agree many types of safety guidelines should be enforced, but they stood by businesses who chose to keep their doors open in spite of the local curfew order.
“Why can’t we use all of those resources, so that if and when there are bad actors, we are handling that appropriately and not punishing everyone else?” asked Kelsey Erickson Streufert, Vice President of Government Relations and Advocacy at the association. “It’s not a political statement. I think that’s important to remember — it’s really a matter of survival.”
Paxton thanked the Supreme Court of Texas for its decision in a release Friday.
“Local declarations cannot order needless shutdowns in conflict with the governor’s order, and these orders demonstrated blatant contempt for the citizens and businesses of our great state,” Paxton wrote. “The Court was right to end these oppressive, illegal city and county declarations and I wish every Texan and Texas business a happy and safe New Year.”
Travis County Judge Andy Brown said he was “disappointed” by the decision.
“I am disappointed by the Texas Supreme Court decision as it limits our ability to slow the spread of COVID-19 in our community,” he said.
“I continue to encourage everyone in Travis County to celebrate and eat safely at home until our overall COVID-19 numbers have decreased. I also would ask everyone to consider supporting local restaurants by ordering food for takeout as I did with my family last night.”