The State of Texas legally challenges ordinances in Austin and Travis County mandating mask coverings in an effort to combat the coronavirus.
Why It Matters for Public Health
This case exemplifies an increasingly common power struggle between states and localities over state preemption of local public health authority. Local governments in Texas and throughout the U.S. are on the frontlines in promoting public health and combating disease. These local governments provide disease prevention and health care services to their populations and also promulgate and enforce regulations intended to promote general welfare and public health. The preemption of well-established local public health authority through a Governor’s Executive Order—especially amidst a pandemic—has the potential to diminish the powers of self-government of municipalities, as expressly granted by state law. This case could have implications for other cities seeking to preserve COVID-19 restrictions, such as mask mandates (e.g., Houston, San Antonio, Dallas, and El Paso), and could serve as a template for cases around the U.S. where preemption of public health powers is at issue.
On March 2, 2021, Texas Governor Greg Abbott issued Executive Order GA-34, which declared that Texas had “reopened for business as usual” and removed almost all mandatory COVID-19 precautionary measures such as limitations on the occupancy rates of certain businesses, limits on the size of public gatherings, social distancing, and the wearing of masks. GA-34 also purports to prohibit the authority of local governments to issue any “conflicting orders” that would include restrictions or limitations that exceed the Governor’s orders, including local ordinances that require the wearing of masks. GA-34 specifically suspends certain sections of the Texas Disaster Act that would otherwise authorize local governments to issue emergency management orders during a declared public disaster.
Because the City of Austin continues to see ongoing threats of transmission, the introduction of new virus variants, a low percentage of vaccinations, and possible “super spreader public events” like spring break, the City and surrounding Travis County sought to keep their mask mandate in place despite GA-34. The State of Texas sued the City and Travis County.
Austin and Travis County argue that the Public Health Authority has the independent and express statutory authority provided to it from the Texas Legislature to take preventative measures to curb the transmission of infectious disease under the Local Public Health Reorganization Act, Tex. Health & Safety Code §121.024. They contend that this authority is separate from and unrelated to the Governor’s emergency management authority and that the City’s mask ordinance is thus not preempted by the Governor’s order.
District Court Proceedings
On March 26, 2021, a district judge denied the state’s request for temporary injunction, allowing the localities to continue to enforce their mask mandates.
On May 27, 2021, a group of public health organizations and law professors, including the Public Health Law Center, led by the International Municipal Lawyers Association, filed an amicus brief in support of Austin and Travis County, requesting that the appellate court affirm the district court’s denial of the State’s temporary injunction. Our brief argues that local governments like the City of Austin and Travis County play a crucial role in protecting public health nationwide and that municipal home rule gives Texas cities broad authority and significant flexibility, especially in local public health issues.
The case is now pending before the Court of Appeals for the Third District of Texas.