By Katie Buehler

Law360 (January 4, 2021, 7:44 PM EST ) In its first ruling of the year, the Texas Supreme Court ordered the halt of a joint Austin and Travis County order prohibiting bars and restaurants from serving dine-in customers late at night over the New Year's holiday weekend because of coronavirus concerns.

Without explaining the ruling, the high court said in a short order Friday that lower courts should enjoin the bar and restaurant restrictions, which were challenged by the state in Texas' latest clash with local governments that want to enact stricter COVID-19 rules than the state has outlined.

Austin and Travis County issued a joint order Dec. 29 that prohibited bars and restaurants from serving dine-in customers between 10:30 p.m. and 6 a.m. Dec. 31 through Jan. 3, but allowed drive-through, curbside pick-up and take-out services to continue.

Texas, represented by Attorney General Ken Paxton's office, argued in its bid for mandamus relief filed with the high court Jan. 1 that Austin Mayor Steve Adler and Travis County Judge Andy Brown had exceeded their emergency powers in enacting new COVID-19 restrictions. Texas argued that the Austin emergency order violated the Texas Disaster Act and Gov. Greg Abbott's current statewide emergency order.

In a Jan. 1 statement, Paxton applauded the high court's decision as upholding the rule of law.

"Local declarations cannot order needless shutdowns to conflict with the governor's order, and these orders demonstrated blatant contempt for the citizens and businesses of our great state," Paxton said.

Mark Escott, Travis County's interim medical director and health authority, said in a statement announcing the ban Dec. 29 that it was aimed at urging people to stay home during New Year's as the city and county are in a "critical" situation of "uncontrolled widespread community transmission of COVID-19."

Texas attacked the joint order in its court filings and said it was issued ahead of holiday-related court closings "transparently intending to evade judicial review."

"This is neither the first time that local officials have exceeded their emergency powers during the COVID-19 pandemic, nor the first time they have sought to evade the court's review," Texas told the state high court. "But without this court's urgent intervention, it will be far from the last."

Brown, Travis County's top executive officer, panned the high court decision in a Jan. 1 statement.

"I am disappointed by the Texas Supreme Court decision as it limits our ability to slow the spread of COVID-19 in our community," he said.

Adler, the Austin mayor, said in a Dec. 31 statement that the restrictions were intended to "save as many lives as we can, guided by the doctors and the data." He touted lower-court rulings he said recognized "that cities have the authority to react to local conditions and protect their residents when the state won't."

Texas sued the city, Travis County, Adler and Brown on Dec. 31 in Travis County District Court, arguing that the joint order violated the Texas Disaster Act, which puts the governor in charge of the state's response during emergency or disaster declarations. The joint order also violated Abbott's most recent executive order, GA-32, which suspends any contrary local orders.

At an afternoon hearing on Dec. 31, Travis County District Judge Amy Clark Meachum denied the state's injunction request, writing in a letter that she viewed the state as unlikely to succeed on the merits. Judge Meachum said she didn't believe the state could demonstrate irreparable harm.

The state immediately appealed Judge Meachum's decision to the Third Court of Appeals, which issued an opinion late that night affirming the trial judge's ruling.

Throughout the pandemic, Abbott and Paxton have challenged efforts by municipalities to enact local COVID-19 restrictions in an attempt to establish the governor's preemptive power over local authorities.

In May, Paxton warned local officials in Dallas, Austin and San Antonio that they had wrongly exceeded state recommendations by issuing local orders that established Dallas law firms as non-essential businesses that should not reopen in the spring, contract-tracing procedures for Austin restaurants, and mask mandates for San Antonio residents over the age of 10.

In November, Paxton brought another emergency relief request to the Supreme Court, asking Texas justices to halt an El Paso emergency order that would have established a curfew for residents and shut down nonessential businesses during a recent spike in COVID-19 cases in the surrounding area. In that case, the Supreme Court declined to intervene and deferred to the Eight Court of Appeals, which had issued a 2-1 decision halting the order.

The state is represented by Judd Stone, Todd Dickerson and Christopher Hilton of Texas' Office of the Attorney General.

Austin and Adler are represented by Sameer Birring, Megan Riley and Sara Schaefer of the city attorney's office.

The county and Brown are represented by Sherine Thomas, David Escamilla, Leslie Dippel and Cynthia Veidt of the county attorney's office.

The case is State of Texas v. City of Austin et al., case number 03-20-00619-CV, in the Court of Appeals for the Third District of Texas.

--Editing by Peter Rozovsky.

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