Q&A: Policy analyst weighs in on dynamic between state, local orders during the coronavirus

Texas Attorney General Ken Paxton sent letters May 12 to officials in Dallas, Bexar and Travis counties as well as the cities of Austin and San Antonio, alleging that their local public health orders amid the coronavirus were “unlawful" and "unenforceable.”

The letters alleged that some elements of the local orders mandating Austin residents to stay home are illegal because they "exceed the city and county's lawful authority," Community Impact Newspaper reported.

Prior to Paxton’s letter, Gov. Greg Abbott called out Harris County at a press conference April 27, saying that the county could not issue fines or penalize residents for not wearing face masks. The attorney general’s office referred only to the May 12 release when Community Impact Newspaper asked Paxton’s office why Central Texas counties and municipalities received letters from the attorney general but Harris County did not.

Community Impact Newspaper spoke with Jonathan Lewis, senior policy analyst at the Center for Public Policy Priorities, an independent public policy association, on May 13 about the shifting dynamic between local and state power amid the crisis. This interview has been edited for length and clarity.

How have the state, counties and municipalities been handling the coronavirus pandemic?

Public health has always fallen very heavily on counties and cities, and the state has a fairly small public health expenditure. Counties do a lot of the heavy lifting. They're running county hospitals, ... so there’s already this dynamic in place where counties and cities are really the go-to on public health within their jurisdictions. It’s been interesting to see the governor originally talking about how local communities should decide; he left them pretty vague and was leaning a lot on counties and local communities to decide what's best for them. This latest order that talks about superseding local orders is really a pretty big shift in not only that historic duties of public health in the state but prior pandemic response.

What’s happening in Texas compared with other states across the nation as they, too, work their way through this pandemic? How are other states handling it differently or similarly?

This is definitely a trend we're seeing all across the country in red and blue states. I think it's just because of the unprecedented nature of [the pandemic]. There are obviously strong feelings about which approaches are necessary or appropriate or when and how much. I think everyone's just trying to figure this out as we go. It's definitely not exclusive to Texas.

What does this communication from Attorney General Ken Paxton mean for local counties and municipalities as they try to navigate reopening during the pandemic?

I think it's an interesting thing to think about when Texas has always been a home rule state, and so it's part of a continuing narrative of state leaders not trusting local officials to make decisions that are best for local communities. We saw a lot of efforts to really limit the power of cities last [legislative] session, and I think [recent decisions are] in line with those efforts. ... You would hope that the state would lean on the authorities that have provided this guidance on public health in the past. ... We think it's very important that there is a statewide coordination to address the pandemic and really implement some guidelines to help us understand what is needed in these times to help us get through this. The difference here in thinking is that the state [should] set a floor of some minimum requirements that need to be in place for the state as a whole, but still allow local health officials to decide and assess the needs in their community. ... We have already put it in a statute that this is a power that we believe [for] home rule municipalities. The governor’s order to supersede that authority that we’ve already given cities represents a pretty large shift in the power of local elected officials to do what is best for their communities.
By Kelly Schafler

Managing editor, South Houston

Kelly joined Community Impact Newspaper as a reporter in June 2017 after majoring in print journalism and creative writing at the University of Houston. In March 2019, she transitioned to editor for the Lake Houston-Humble-Kingwood edition and began covering the Spring and Klein area as well in August 2020. In June 2021, Kelly was promoted to South Houston managing editor.