Judge Okays Austin Restaurant Curfew, State Suit Rejected

AUSTIN, TX — A Travis County Judge on Thursday rejected a Texas lawsuit led by the state's attorney general that sought to halt a local order limiting restaurants' hours of operation over the four-day New Year's holiday period to help blunt spread of the coronavirus.

Austin Mayor Steve Adler and Travis County Andy Brown this week issued an order to ban dine-in service at restaurants after 10:30 p.m. starting on Thursday. But Attorney General Ken Paxton immediately balked at the effort, filing a lawsuit to prevent the local order from taking effect.

District Judge Amy Clark Meachum was succinct in handing down her ruling: "The Court finds the State has not demonstrated a probable right to the relief sought nor imminent and irreparable harm," she wrote as part of a two-page letter reportedly delivered a mere hour after a 2 1/2-hour virtual hearing ended.

Undaunted, Paxton immediately filed an appeal in the Austin-based Third Court of Appeals in asking for a halt to the local measure that was implemented as a tactic of thwarting spread of the coronavirus. Despite assertions by the Austin mayor and county judge the local order represents a mere alteration of restaurant hours, Paxton — and, subsequently, Gov. Greg Abbott via Twitter — has categorized the local action as a "shutdown" in violation of a previous gubernatorial order.

Previous coverage:

• Restaurant Curfew Issued In Austin Amid Coronavirus
• AG Paxton Sues Austin Over Restaurant Industry Pandemic Curfew

In announcing his appeal, Paxton continued use of the term in urging the appeals court to stop the dual orders by the city and county "...which illegally impose a four-day shutdown of dine-in food and beverage services from 10:30 p.m. to 6 a.m., Dec. 31 through Jan. 3," the attorney general wrote. He added: "The city and county orders are brazen violations of state law."

Read a copy of Paxton's filing here

A separately issued joint statement with Abbott reiterates the state's stance that restaurants should remain open up to the new year per the governor's Executive Order GA-32 — a measure largely centered on restaurant occupancy limits.

"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," the Abbott-Paxton statement read. "They should remain open. Happy New Year!"

In a follow-up statement Friday, Paxton said he now plans to ask for an emergency stay by the Texas Supreme Court in his ongoing efforts to halt the restaurant industry curfew. In announcing the move, Paxton accused city and county leaders of waiting to announce the curfew just ahead of the holidays in a calculated move to make legal challenge more problematic amid the holiday period.

"The city and county orders clearly violate the governor’s Executive Order No. 32. Local authorities have no authority to override it,” Paxton wrote. “Releasing these orders in the dark of night right before a major holiday demonstrates Adler’s and Brown’s bad faith and blatant contempt for Texans and local businesses. And now, because of their games, we’re having to pull litigants and our highest court away from their New Year’s Day holiday celebrations just to deal with local officials’ arbitrary declarations."

The mayor and county judge first revealed plans to implement the order on Tuesday afternoon prior to the action taking effect on Thursday. By Wednesday, more details were released related to cutoffs to restaurants' hours of operation.

In a prepared statement following the judge's ruling, Adler explained the reason for the local order: "We are trying to save as many lives as we can, guided by the doctors and the data. We’re encouraged the district court agreed that cities have the authority to react to local conditions and protect their residents when the state won’t. This is not a drill — Austin is experiencing uncontrolled spread of the virus."

Whatever the ultimate outcome of the legal battle, Adler urged residents to observe safety protocol: "Whether this court’s ruling stands or not, 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."

Austin and Travis County one week ago moved to the top Stage 5 alert level for coronavirus, the red-colored top tier of advisories indicating uncontrolled community spread of the virus. On the same day Paxton sued the city for its illness-curbing effort, Austin Public Health reported 546 new coronavirus cases with four additional deaths — raising the cumulative number of confirmed cases to 50,194 and pushing the overall fatality total to 548 since the pandemic began.