Travis County judge pushes back against attorney general's reprimand of stay-at-home order

In response to a May 12 letter from Texas Attorney General Ken Paxton calling aspects of Travis County's coronavirus-related public health order unlawful, interim Travis County Judge Sam Biscoe has issued a letter of his own pushing back against the attorney general's warning.

"These unlawful and unenforceable requirements include strict and unconstitutional demands for houses of worship, unnecessary and onerous restrictions on allowing essential services to operate, such as tracking customers who visit certain restaurants, penalties for not wearing masks, shelter-in-place demands, criminal penalties for violating state or local health orders, and failing to differentiate between recommendations and mandates," Paxton's office wrote in a May 12 press release regarding his letter to Travis County—as well as Dallas and Bexar counties and the mayors of Austin and San Antonio.

Biscoe's letter, sent to Ryan Vassar, deputy attorney general for legal counsel, on May 29 takes issue with Paxton's assessment that Travis County's May 8 local order conflicts with Gov. Greg Abbott's orders and exceeds the county judge's authority. Specifically, Biscoe said Travis County's order actually only recommends masking of individuals over the age of 10, and does not require it, as Paxton purported in his letter. Biscoe said the county had already removed confinement as a punishment for neglecting to wear a mask, making the order compliant with the governor's.

Biscoe also refuted Paxton's assertion that Travis County's order is overly restrictive to houses of worship.

"The County Order also does not restrict Houses of Worship and your statement that, 'your orders provide that essential services, such as houses of worship, ‘shall’ comply with certain restrictions ...' is incorrect," Biscoe wrote. "This language is not in the County Order. Instead, the County Order incorporates the Governor’s Order and exceptions for obtaining essential services, including religious services."

The county's May 8 order—which is in effect until June 15, when Biscoe will have to decide whether to issue a new order—also includes a stay-home mandate, which Biscoe said is in no way inconsistent with state orders.

"Because the County Order incorporates all of the Governor’s exceptions, there is no conflict and the end result is the same," he wrote. "The clear purpose of the County Order is to protect the health and safety of the Travis County community from COVID-19, which is consistent with the Governor’s directives. The County Order puts added emphasis on individuals voluntarily following the guidelines and health protocols issued by the Austin-Travis County Health Authority and the CDC. This is also consistent with recommendations that the Governor has made."