Texas AG Ken Paxton calls Dallas judge’s pandemic order ‘overbearing government action’
Texas Attorney General Ken Paxton warned Dallas County Judge Clay Jenkins that some of his pandemic orders are unlawful and unenforceable.
Letters also went to Bexar County and the city of San Antonio and Travis County and the city of Austin.
Paxton says several of Jenkins’ coronavirus orders go too far in limiting the freedoms of residents and are superseded by Gov. Greg Abbott’s executive orders.
At issue in Dallas County are orders related to shelter in place, houses of worship and the wearing of masks.
Jenkins responded to the warning with a statement.
“We intentionally modeled the public health guidelines based on the Governor’s recommendations, never imagining he did not want his own guidelines followed,” Jenkins said in a release. “I ask the public to make decisions based on the recommendations of public health professionals: our lives depend on it.”
First, Paxton takes issue with Dallas County’s order to limit the number of worshipers attending religious services.
“Your order conflicts with the governor’s order by mandating that houses of worship comply with the protocols referenced in your order, including potential limitations on the number of people who can attend religious services,” says a letter from Paxton’s office. “A local order that limits how a house of worship conducts services, or otherwise restricts essential services, conflicts with the governor’s order and is, therefore, unenforceable.”
Paxton reminds Jenkins that Executive Order GA-21 “prohibits a local order from limiting the number of people who can attend religious services.”
“Nothing in the governor’s order or the joint guidance mandates how religious services should be conducted,” Paxton wrote. “Unlike the governor’s order, which respects the robust constitutional and statutory rights protecting Texans’ free exercise of religion, a local order that unlawfully tramples religious freedom exposes the county to legal liability. The federal and state Constitutions and the Texas Religious Freedom Restoration Act ensure that Texans can worship and freely exercise their religion according to the dictates of their own consciences, and not limited by overbearing government action.”
Paxton’s main point is to make it clear that Abbott’s order included recommendations on how to reopen safely but did not mandate them.
Paxton also says Jenkins goes too far in restricting the freedoms of essential and reopened businesses. His order specifically warned they could be removed from the list of essential or reopened services if they don’t comply with the Dallas County orders.
“If you try to close an essential or a reopened business — regardless whether a violation of your order occurs — your action would conflict with Executive Order GA-21 by restricting essential or reopened services and would, therefore, be invalid,” Paxton said.
Paxton also says that Jenkins’ order requiring residents to wear face coverings or be subject to civil or criminal penalty is invalid and unenforceable.
“Because local governments cannot enact laws that are inconsistent with State law, any local order that purports to impose a civil or criminal penalty for not wearing a face covering is void and unenforceable,” said Paxton, adding that Abbott’s order only “encourages” wearing masks.
“The governor’s order recognizes that Texans will act responsibly and make smart decisions to protect themselves and their families. In contrast, your order purports to strip Texans of their agency. Although your order ‘requires’ individuals to wear masks when they leave their home, they are free to choose whether to wear one or not.”
Lastly, Paxton tells Jenkins that his shelter in place order is invalid.The governor’s order does not include a mandatory ‘shelter-in-place’ order, but yours does,” he said. “Your order requires all residents to shelter-in-place, closes all businesses that are non-essential or not reopened services, and prohibits all gatherings except those permitted by the order.”
The governor’s order “supersedes conflicting local orders that restrict essential or reopened services,” he said. “Insofar as your order conflicts with the governor’s order, it is unenforceable.”
This story was originally published May 12, 2020 at 6:38 PM.
