Hidalgo has ‘broad authority’ during crisis
Republicans and police union officials on Wednesday were quick to question the legality of Harris County Judge Lina Hidalgo’s order requiring residents to cover their faces in public and whether she had the authority to issue such an order.
The short answer, from the Harris County Attorney’s Office, is state law grants the county judge “broad authority” during a local disaster.
Hidalgo’s order, aimed at slowing the spread of the coronavirus, will require residents 10 and older to cover their nose and mouth when outside. The rule takes effect Monday, lasts 30 days, and allows scarves, bandanas, handkerchiefs and homemade masks.
After news broke of Hidalgo’s order, Houston Police Officers’ Union President Joe Gamaldi said in a sharply worded statement that the union had “made contact with the Attorney General’s Office seeking an opinion on the legality of imposing a criminal penalty/fine for anyone not wearing a mask in public.” Harris County Republican Party Chair Paul Simpson called the order “a likely unconstitutional, and certainly unenforceable, power grab that infringes on the rights and liberty of law-abiding citizens.”
In response to the coronavirus outbreak, Hidalgo declared a local disaster in Harris County, giving her power under Texas’ Government Code to order restrictions on bars and restaurants and suspend the operations of most businesses and public activities. Other county judges across Texas, including in Dallas and Travis counties, have issued similar orders citing the same state law.
Soard pointed to Section 418.108 of the Government Code, which gives the county judge the authority to declare a disaster in her jurisdiction and to “control the movement of persons and the occupancy of premises in that area.” That authority extends to the incorporated and unincorporated parts of the county.
Soard also cited a provision that allows Hidalgo to “exercise the powers granted to the governor” for emergency management, including issuing local executive orders that “have the force and effect of law.”
Marc Rylander, a spokesman for Attorney General Ken Paxton’s office, said late Wednesday afternoon that he was “not aware that we have been asked for an AG opinion on the matter.” Asked whether Paxton believes Texas law allows county judges to require face coverings in public, Rylander directed the Chronicle to a statement from Paxton urging officers to “use discretion as they carry out the functions of their sworn duty and focus on dangerous criminals who pose a serious risk to their community.”
Though a draft of the order obtained by the Chronicle said violators could be subject to a maximum of 180 days in jail, the final version included a fine of up to $1,000 but no jail time.