Austin Commits to Local Mask Requirement Amid State Rollback on COVID Restrictions

A Stubb's bartender pours a drink on the first night Texas bars reopened last May, before being shut down again in June; as of March 10, all Texas businesses may reopen at full capacity (Photo by David Brendan Hall)

Austin will continue to require the community to wear face masks, despite Texas Gov. Greg Abbott's rolling back a statewide mask mandate, among other COVID-19 safety measures, as of Wednesday, March 10.

Although masks are no longer required by state orders, the city is enforcing masking and other mandates in local Health Authority Emergency Rules adopted by Interim Health Authority Dr. Mark Escott. Last July, Austin City Council passed an ordinance authorizing Escott, as the top health officer for the city (and county), "to adopt rules reasonably necessary to protect the public health" against COVID-19, which include requiring masking in businesses open to the public, with some exceptions. The emergency rules remain in place for now through April 15; they've been renewed several times and could be again.

"The enforcement of [the health authority rules] will stay in place," reiterated Escott during a joint briefing before Council and Travis County Commissioners Court on Tuesday, March 9. "Because we have to continue to protect our community so that we can save lives."

As the Chronicle went to press, we are anticipating another legal confrontation with the state of Texas over the city's mandate conflicting with Abbott's GA-34 executive order allowing all Texas businesses to reopen at full capacity without any mask mandate. On Wednesday (March 10) Texas Attorney General Ken Paxton issued a letter to Mayor Steve Adler and Travis County Judge Andy Brown, saying local leaders had until 6pm that evening to rescind any mask mandates or business-operating restrictions and “come into compliance” with Abbott’s order. “Otherwise,” wrote Paxton, “on behalf of the State of Texas, I will sue you.”*. Although businesses may still enforce their own mask rules for employees and customers, GA-34 explicitly prohibits jurisdictions from imposing any penalties for not wearing (or requiring others to wear) a mask. The July ordinance makes violating the health authority rules a Class C misdemeanor punishable by fines up to $2,000. (Abbott's orders prior to the July ordinance prohibit jail time for mask violations.)

Also, according to Escott, someone without a mask who refuses to leave a local business that requires one could be arrested for trespassing, and "if that trespassing involves violence or threats, it's going to increase the level of the crime that's involved. ... Again, people can have their own personal views about masking, [but] when they enter a business that requires masking, they give up that right."

Abbott and Texas Attorney General Ken Paxton last challenged city and county officials over limits to in-person dining (and, indirectly, bar operations) over New Year's Eve weekend, which the Texas Supreme Court ultimately blocked. "The governor has obviously taken the position that his order trumps a mayor's or a county judge's order in that regard," said Mayor Steve Adler. For now, the city will not enforce Adler's own COVID-19 orders, which required masking among other safety measures, and will instead focus on the health authority rules, as recommended by City Attorney Anne Morgan during Tuesday's joint briefing; those rules can still be enforced by peace officers, the Austin Fire Marshal's Office, and Austin Code.

“Judge Brown and I will continue to do everything within our power, continuing existing health authority orders and using every tool available to us to reduce the spread of the virus [and] to keep as many people as alive as possible,” said Adler in a prepared statement issued in response to the Texas A.G.’s threat of litigation. “The Governor and Attorney General are simply wrong.”*

*Editor’s note: This story has been updated since publication to reflect further developments in both state and local officials’ responses to Austin’s mask mandate after the Chronicle went to press on Wednesday, March 10.