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Texas Supreme Court: Austin won’t be allowed to restrict dining-in at restaurants

Austin Mayor Steve Adler and Travis County Judge Andy Brown sought to restrict dine-in food and beverage service both indoors and outdoors from 10:30 PM to 6 AM, starting on New Year’s Eve and ending at 6 AM Sunday. The measure allowed restaurants to offer drive-thru, curbside pick-up, take out, or delivery services.

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A bartender makes a drink for a customer on May 22, 2020. Photo credit: Jordan Vonderhaar for The Texas Tribune

The Supreme Court of Texas on Friday blocked Austin-area orders that restricted dining-in and drinking at restaurants through January 3. The order followed a New Year’s Day appeal by Attorney General Ken Paxton.

Austin Mayor Steve Adler and Travis County Judge Andy Brown announced the orders on December 29 in a bid to slow spiraling coronavirus infections and hospitalizations going into New Year’s Eve. They were quickly challenged by Gov. Greg Abbott and by Paxton, who described the orders as “needlessly oppressive.” Both officials exhorted Texas restaurants to remain open in defiance of the orders, which were upheld by a district judge Thursday. In a further blow to the state, Texas’ Third Court of Appeals swiftly rejected an appeal later that night.

Friday’s Supreme Court order, however, directs the lower court to block enforcement of the orders, pending any further appeal.

Brown said in a statement he was “disappointed” by the decision “as it limits our ability to slow the spread of COVID-19 in our community.”

“I also would ask everyone to consider supporting local restaurants by ordering food for takeout as I did with my family last night,” he said.

The orders sought to limit restaurants to offering only take-out from 10:30 PM to 6 AM from New Year’s Eve to the morning of January 3. Lawyers for the city and county said the restrictions do not shut down businesses. The interim health authority for the City of Austin and Travis County cited the risk of “uncontrolled surge” around big events, like Mardi Gras or New Year’s, at a hearing Thursday.

But lawyers for the state said the orders contradicted one from Gov. Abbott, that allows for dine-in restaurant service and bars local officials from enacting more restrictive rules.

The Texas Restaurant Association said on Twitter it was grateful for Abbott and Paxton’s actions and that closing indoor dining would “not prevent holiday celebrations” but “simply move them from highly regulated businesses into completely unregulated spaces.”

“The public is exhausted and confused, and it’s past time that our leaders stop looking for scapegoats and rally around those prevention strategies that we know work like wearing a mask, social distancing, and avoiding unregulated gatherings,” the association said.

Austin officials have voiced alarm over the availability of intensive care unit beds as cases spread across the state.The number of hospitalized coronavirus patients statewide has reached record highs and more than 27,770 people in Texas have died with the virus.

The Travis County Fire Marshal’s office found two out of more than a dozen businesses in the unincorporated areas of the county were violating the local orders last night, according to a spokesperson for the county. Several bars in Austin remained open for New Year’s Eve, with one manager citing the economic blow closing would have on his staff’s ability to pay their bills, KXAN reported.

The Fire Marshal’s office and the Austin Police Department did not immediately respond to requests for comment.

Abbott and Paxton have sparred with other local officials who pushed aggressive measures meant to tamp down on the virus’ spread. As El Paso saw a deadly surge this fall, Paxton’s office and a group of local restaurants sued to block an order from County Judge Ricardo Samaniego that temporarily shut down nonessential businesses.

Samaniego ordered a curfew similar to that in Austin and Travis County for Christmas and New Year’s Eve.

Disclosure: Steve Adler, a former Texas Tribune board chair, and the Texas Restaurant Association have been financial supporters of the Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. Find a complete list of them here.

The Texas Tribune is a nonpartisan, nonprofit media organization that informs Texans — and engages with them – about public policy, politics, government and statewide issues.

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january 2021

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