Texas AG threatens to sue city of Austin for defying governor on mask mandate

March 10, 2021, 8:01 PM EST

By Corky Siemaszko

Texas Attorney General Ken Paxton threatened Wednesday to sue the city of Austin and surrounding Travis County after officials there, citing the continued threat of Covid-19, said they would continue to require residents to wear masks even “when outside of their residence.”

Paxton’s threat came on the same day the state’s mask mandate, which Texas Gov. Greg Abbott did away with last week, officially expired.

“City/county leaders must not be thinking clearly,” Paxton said in a Tweet. “Maybe it’s oxygen deprivation from quintuple-masking. Whatever the case, they’ve tried this before. They lost. Travis County and Austin have a few hours to comply with state law or I’ll sue them.”

Paxton, who like Abbott is a Republican, directed the threat at Travis County Judge Andy Brown, Austin Mayor Steve Adler, and cc’d Dr. Mark Escott of the Austin-Travis County Health Authority. They were given until Wednesday night to comply.

Adler responded to the threatened lawsuit by saying he and Brown will continue enforcing the safety mandates. "We will fight Gov. Abbott and Attorney General Paxton’s assault against doctors and data for as long as we possibly can," Adler told the Austin American Statesman in a statement on Wednesday.

"I believe leaders need to be clear and unambiguous in their communications and messaging about masking. Masks work! The Governor and Attorney General are simply wrong."

Escott made it clear on Tuesday that, as a public health expert, he disagreed with Abbott’s decision to lift the mask mandate and said Austin’s restrictions will stay in place until April 15.

“Wearing a face covering is one of the easiest ways to slow the transmission of disease in our community,” Escott said in a statement released by the city of Austin. “While vaccine administration is underway, we are still not in a place of herd immunity and people need to wear face coverings in public and around non-household members so we can avoid a surge of cases.”

Just 8.5 percent of the population in Texas was fully vaccinated as of Wednesday, the latest statistics showed.

The city of Austin’s statement also included the following line: “In the City of Austin, an individual must also wear a face covering when outside of their residence.”

Austin, which is also the capital of the Lone Star State, is not the only major Texas city that is resisting Abbott’s executive order.

But Austin’s defiance appears to go further than that of Dallas, Fort Worth, Houston, El Paso and San Antonio, all of which have vowed to keep mask mandates in place, but only on city property or in public schools.

The U.S. government is also continuing to require that Texans mask-up in all federal buildings and courthouses and on public transportation.

Abbott’s surprise announcement last week that he was ditching the mask mandate and loosening other Covid-19 restrictions was harshly criticized by doctors, who warned it could spark another surge in new cases. Political opponents accused the the governor of trying to distract voters from the state’s disastrous response to the deadly winter storm that shut down the power grid and left millions of Texans shivering in their homes for days.

President Joe Biden called the move by Abbott, as well as the similar move by Mississippi Gov. Tate Reeves, examples of “Neanderthal thinking” and a “big mistake.” Biden blasted both leaders for easing restrictions even after the federal Centers for Disease Control and Prevention warned against complacency in the face of emerging coronavirus variants.

Abbott insisted the “state mandates are no longer needed,” although admitted “Covid has not suddenly disappeared.”

“It is now time to open Texas 100 percent,” he said.

Under Abbott’s executive order, private businesses can fully reopen provided the rate of Covid-19 hospitalizations remain low.

Abbott’s directive also states clearly that local governments won’t be able to fine people who refuse to wear masks in the businesses that still require them.

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“No jurisdiction may impose a penalty of any kind for failure to wear a face covering or failure to mandate that customers or employees wear face coverings,” his order reads.

But Abbott’s order also allows local officials to “enforce trespassing laws and remove violators at the request of a business establishment or other property owner.”

Bexar County Judge Nelson Wolff in San Antonio said local law enforcement will not hesitate to do so.

“If a business calls and says, ‘This guy is trespassing on my property and not following the rules that I have, will you come out and remove him’ ... the sheriff said he would go out and remove them,” Wolff said.

Masks will also be required for the already reduced number of people attending the NCAA women’s basketball tournament, which San Antonio is hosting this year.

Meanwhile, the Texas Rangers cited Abbott’s executive order in its announcement Wednesday that it plans to fill the stands this season at Globe Life Stadium in Arlington to 100 percent capacity. The Rangers are the first Major League Baseball team to do so.

But the team will still require fans to wear masks unless they are eating or drinking and will give them “three strikes” before they’re penalized for non-compliance.

“We’re fully confident that we can do this is in a responsible and safe way,” team president and COO Neil Leibman said. “There is so much pent-up demand for people wanting to go to events in a safe environment.”

Emily Berman, a Constitutional law professor at the University of Houston Law Center, said federal law protects Americans from discrimination on the basis of race, color, sex, disability, religion, family status, national origin and citizenship — but “not mask wearing.”

Still, Berman told NBC News and other local news outlets, businesses can require people to wear masks and customers “do not have a constitutional right to enter a particular store or a particular place of business.”

“Businesses can have their own policies,” Berman said. “I mean, how many restaurants have you seen that say 'no shirt, no shoes, no service'?”

Texas continues to report nearly 3,000 new coronavirus cases per day and the troubling numbers have ticked upward by 1.6 percent over the last week, according to data compiled by The Covid Tracking Project, even as more and more Texans are getting vaccinated.

Public health experts have warned of another possible surge of new Covid-19 infections in the wake of the wintery blast that forced many Texans to abandon their homes and head to heated shelters where there was little, if any, social distancing.

Since the start of the pandemic, Texas — the second most populous state in the nation after California, with nearly 29 million people — has reported some 2.7 million cases and nearly 46,000 Covid-19 deaths, according to the latest NBC News figures.

The majority of those infections and deaths came after Abbott did not heed the advice of public health experts and, like Gov. Ron DeSantis in Florida, reopened his state after only a short quarantine. Both governors shut down bars last June and issued other public health mandates after the pandemic began rampaging through their states.

In making Texas the largest state in the country to end the mask mandate, Abbott argued his state was now “in a completely different position” from last March when he reluctantly issued his first executive orders aimed at slowing the spread of the coronavirus.

“We now have vaccines,” said Abbott, adding that Texas was now vaccinating people at a rate of 1 million per week.

Dr. Mark McClellan, a former Abbott advisor who previously served as U.S. Food and Drug Administration commissioner under President George W. Bush, disagreed.

"We need to remember that we're still facing significant risk of spread among people who are at risk for complications, so (we) just want to take the foot off the brake carefully," McClellan told the Austin American-Statesman earlier this week.

"There's still a lot of people who are at risk of serious consequences that aren't protected by vaccines yet.”

Texas has received 9.7 million doses so far, according to the most recent federal Centers for Disease Control and Prevention figures, and has administered 7.3 million shots.

Corky Siemaszko is a senior writer for NBC News Digital.