As coronavirus cases soar, Texas contends with diminished public health influence
Tarrant County’s public health department and top elected officials know behavior must change to slow the rate of coronavirus infection. Vinny Taneja, the director of public health, suggests people avoid bars and gyms and stop eating indoors at restaurants. Judge Glen Whitley recommends scholastic and youth sporting leagues halt events. “This is the time to put the pedal to the metal and power through,” said Roy Charles Brooks, a Tarrant County commissioner.
But despite their concerns, they are not making any major changes to Tarrant County’s mitigation strategy and they are quick to note their hands are tied. They and other local authorities are on the wrong end of the state vs. local conflict that has defined Texas’ coronavirus response. While Republican Gov. Greg Abbott maintains nearly all the power for handling coronavirus-related restrictions, they can do little besides offer recommendations, even as infections spiral upward.
This week, Texas set a daily record for cases, and hospitalizations for COVID have nearly doubled in the last month. Although infections are up almost everywhere in Texas, the surge has been particularly severe in certain areas. Tarrant County, for instance, has seen its hospital occupancy rate for COVID patients triple to 13% since September, climbing near its July peak, while Harris County has seen a steady but not record-high increase in recent weeks. El Paso’s hospitalization rate was recently at 51%, while the Valley, after getting hit hard in the summer, had hospital occupancy decline most of the fall before ticking back up.
As infections and death increase in a given community, so do people’s tolerance for more stringent public health strategies, according to Robert Atmar, a professor of infectious disease at the Baylor College of Medicine in Houston. He said Texas, given its vast geography and rural-urban split, is bound to have variations in infection rates, making it vital for the state and local governments to each step in at the right time. “I think in an ideal world there would be ready communication between the two groups and not a struggle for whose authority prevails but a consensus. And I think that’s been the challenge, reaching the consensus about what the best approach is and how best to implement different kinds of activities.”
Whitley, a Republican, has been navigating this stage of the crisis with the knowledge that his decisions can only go so far. Aside from extending a governor-approved mask order, telling citizens to make smart choices and continuing surveillance and tracing, he believes there is little counties can do to mitigate surging infection rates.
“I wish we could persuade the governor to give us a little more flexibility over our major urban areas,” he said.
Diminishing the authority of public health
Since March, local authorities have been tangling with the governor in what has been a microcosm of a yearslong crackdown on the tradition of local control. Texas’ state government, led by Abbott and Attorney General Ken Paxton, has attempted to reverse local laws on paid sick leave and fracking. It has also targeted Austin’s police and homeless ordinances.
After letting counties set their own rules for closing bars and restaurants in early March, leading to dueling policies in metro areas and criticism for the governor, Abbott used an executive order to create what amounted to a statewide lockdown on March 20. In declaring the March executive order, Nim Kidd, the chief of the Texas Division of Emergency Management, said the governor was trying to set a smaller, uniform playing field across the state in which local judges and mayors could still operate.
Critics of Abbott contend that while the state was right to apply uniform restrictions given the ubiquity of COVID-19 there isn’t enough room for local decision-making. Since April, Abbott has continued to regulate Texas’ coronavirus strategy through a series of executive orders, while pushing back against the county officials. In April, before masks were mandated by the state, Harris County judge Lina Hidalgo created a rule imposing fines on people who failed to wear masks, only to have Abbott attack its legality. “My executive order, it supersedes local orders,” he said at a press conference.
In El Paso, where county judge Ricardo Samaniego enacted a late October lockdown after ICUs and morgues filled up, Paxton intervened in a lawsuit seeking to overturn the decision. His office argued that under Texas law local officials’ power to issue emergency orders is “derivative and subservient to the Governor’s power.” Abbott’s most recent executive order, October’s GA-32, which increased capacity at many businesses to 75%, contained a passage stating the governor’s executive order supersedes any COVID-19 orders from a local government that restricts services allowed under the executive order, effectively preventing them closing or reducing the occupancies of most businesses.
“The ball has been taken out of public health departments’ courts,” said Diana Cervantes, a professor and director of the MPH Epidemiology Program at UNT Health Science Center. “The authority has been diminished.”
Cervantes, who worked in public health for Tarrant County and the state, believes guidance from Paxton regarding schools was a turning point in the state flexing control. The guidance, released in July, said schools could not preemptively shut down based on observations from local public health officials and had to open by at least the ninth week of the school year. “I think it’s left public health in a very weird limbo, a gray area, where they don’t have the authority that was assumed before and have always previously had,” Cervantes said.
The Texas Administrative Code grants authority to local health officials in Title 25, Chapter 97. The rules basically state that public health departments can take measures to prevent the spread of disease, including quarantines and closures, as long as the control measures are at least as stringent as the state’s. While the state has always had ultimate power, Cervantes said Texas’ leaders have traditionally deferred to localities for matters of public health, trusting they understand their communities’ needs and can balance protecting the public with the economic and political consequences of strict mitigation strategies. When the Spanish Flu decimated Fort Worth and Dallas in 1918, for instance, it was the local authorities who closed schools.
The steps taken in America’s last major pandemic proved significant in an El Paso district court, which said the county’s lockdown could stand until a final decision is made, citing that cities like San Antonio and Dallas crafted unique restrictions in 1918. Paxton’s office appealed the district ruling and on Thursday a state appeals court ordered a temporary end to the lockdown. The district court still has yet to make a final resolution.
Whitley said he would be paying close attention to the case: “That’s going to really set what options as judges we may have or certainly the ones we won’t have.”
Although Whitley mentioned during Tuesday’s county commissioners meeting that he wanted to persuade the governor to grant counties more flexibility, he said he has not spoken with Abbott or his staff recently. He also has not used a power available to him for enacting stronger coronavirus restrictions by declining to close bars, as Dallas County has. Whitley believes the bigger issue is with bars that used a loophole to reopen as restaurants (some of which blatantly broke occupancy and social distancing rules) and that a closure of bars that waited for Abbott’s legal permission would have a negligible effect.
After expressing a desire for schools and youth leagues to halt sporting events on Tuesday, Whitley said he would not cancel them if he had the power. He would like the decision to rest with an even more local group: “I would not order it,” he said. “I believe the school boards are the ones that are elected to take care of the schools.”
‘We do expect ... cases to go down’
Public health experts and virologists acknowledge the enormous challenge of stopping rampant spread at this stage of the pandemic. They largely say statewide lockdowns would be difficult and less stringent measures may fail because of pandemic fatigue and political polarization. “Whatever it is you may mandate it’s just going to be hard to have a significant impact,” said Liam O’Neill, a professor of health systems at the University of North Texas.
Many would still recommend intervention from elected officials, particularly closing bars and greatly reducing seating at restaurants or closing them. Schools have mostly succeeded in preventing on-site transmission, according to Cervantes.
Benjamin Neuman, a professor and virologist at Texas A&M-Texarkana, said punishments for mask violators could also make a difference, noting authorities have seemed unwilling to use their power. “I think some of that had been politically necessary in the run up to the election. Now that the election is decided, even at local levels, I don’t see what is staying the hands of the people who could be making these changes right now.”
For Abbott, who appeared on an KXAS Channel 5 newscast Wednesday, the solution appears to be keeping the status quo on restrictions, despite Texas’ positivity rate rising to 9% and 10% in the last two weeks. Abbott has said a positivity rate above 10% signals a red flag. “We had this skyrocket rise in July and people responded to that rise by following the safe practices,” he said, referring to social distancing and mask wearing. “And people just need to return to those safe practices in the immediate time frame. ... We can continue with those businesses open as long as people follow the safe practices.”
When asked if he was considering changing any of his executive orders, Abbott noted his most recent executive order has an automatic “ratchet back” clause. The order mandates the closure of bars and reduction of occupancy in other businesses in counties where COVID patients exceed 15% of hospital capacity for seven consecutive days (his spokesperson offered a similar response to specific questions from the Star-Telegram about Abbott’s stance on local control and COVID precautions). Abbott also touted the release of coronavirus vaccines and two drug treatments similar to what President Donald Trump received, saying he expected them to be distributed in Texas this month. The vaccines will be limited for the most at-risk people, such as health care workers and the elderly.
“We do expect the number of COVID cases to go down,” Abbott said.
But they have not been going down yet. Taneja, addressing the Tarrant County Commissioners on Tuesday, asked people to wear masks, to not gather outside in groups larger than 10 and to spend Thanksgiving with immediate family only.
The recommendations were the public health director’s only avenue for influence. “All at this point we can do is provide guidance,” he said. “We don’t have the ability or any policy tools available to us.”
Texas COVID-19 cases over time
Texas daily coronavirus case counts over time, and the ten counties with the most cases. Tap the arrow button to replay the animation.
This story was originally published November 13, 2020 at 6:00 AM.
