State appeals court halts El Paso County judge’s extension of shutdown order.
State appellate court sides with private businesses suing the city by overruling judge’s decision to extend lockdown into December
A state appeals court on Thursday temporarily put a stop to the El Paso County judge’s extension of his shutdown order through Dec. 1.
The two-week shutdown order, which was first issued at the end of October, had required nonessential businesses to close and residents to stay home except for essential activities until Dec. 1. With the temporary injunction, the order will be on hold until the end of the appeal.
County Judge Ricardo Samaniego has said the lockdown was necessary because of a recent surge of COVID-19 cases. The county saw an average of about 1,800 newly reported cases daily last week, and hospitalizations in the region reached more than 41 percent of capacity, according to state data.
Attorneys for El Paso County could not be immediately reached for comment.
The ruling came as a result of Texas Attorney General Ken Paxton’s office joining a group of 10 restaurants in suing over the order. Paxton argued that the county judge lacks the authority to issue the shutdown and that it contradicts the governor’s Oct. 7 statewide order that sets out capacity limitations for private businesses.
Paxton commended the court’s decision in a statement Thursday.
“It is important that we do not shut down the economy ever again, & this decision allows small businesses to continue to operate & pay employees,” Paxton tweeted.
During televised remarks Thursday, Republican Gov. Greg Abbott put the blame on Samaniego. A week before the El Paso County judge issued his order, Abbott said he told him to instead enforce the statewide order. Abbott said the county has since begun to enforce the statewide order.
“My pre- existing order actually did lead to a decrease in capacity limitations and also led to a shutdown on all bars in the region, and what I could not get the county judge to dowas to enforce those limitations,” Abbott said. “It doesn’t matter what capacity limitations you put out there if you are unwilling to step up and enforce those capacity limits.”
Samaniego has said he needed to impose stricter provisions than those in the governor’s order, per recommendations from health experts, county judges and his legal department.
The El Paso County Sheriff’s Department is enforcing the order while the El Paso Police Department is not, according to the El Paso Times. Some businesses have already flouted the order in defiance. Violations are punishable with a fine of up to $500.
State District Judge William E. Moody upheld the order in a Nov. 6 ruling in which he said local officials have the authority to exercise discretion in responding to crisis and come up with the best solution for their community.
Moody compared the COVID-19 pandemic to the 1918 Spanish Flu pandemic.
“Cities like Dallas, and San Antonio, developed their own unique responses to the deadly flu, in amanner that their elected local officials felt was necessary to protect the health and financial interests of their individual communities,” Moody said in a virtual proceeding on the day he issued the ruling. “Those orders varied over time, depending upon the severity of the spread of that deadly virus or that deadly flu.”
On Tuesday, the Texas Supreme Court declined to intervene and block the order while the 8th Court of Appeals deliberates, saying the appellate court had committed to issuing an expedited ruling within two days.
The case comes as Abbott and other Texas Republicans have been pushing to return the state to normal business conditions as quickly as possible — some even argue immediately, even as a third wave approaches. Paxton has called the El Paso County order an act of “oppression” on the community.
Abbott in September raised indoor capacity limits for certain services to 75 percent, and this month, he moved to allow bars in counties that opt in to resume inperson service at 50 percent capacity.
Yet cases in Texas are only getting worse. As of thisweek, Texas was the first U.S. state to reach the grim milestone of surpassing1 million COVID-19 cases.