Abbott: Curfew Not Legal (But Capacity Limits Still Are)

UPDATE: Texas Atty. Gen. Ken Paxton announces he will seek legal action against Austin if the curfew continues.

A vaccine is being delivered and Americans are adjusting to life under COVID-19, even while the recent surge continues to take lives. But the confusion still abounds, especially in Texas.

Taking Austin as an example: While county and city officials conspire to enforce a curfew in the Live Music Capital of the World, Gov. Greg Abbott tweeted not so fast:

Image may contain: 1 person, text that says 'Greg Abbott @GregAbbott_TX This shutdown order by Austin isn't allowed. Period. My executive order stops cities like Austin from arbitrarily shutting down businesses. The city has a responsibility to enforce existing orders, not make new ones. John Engel @EngelsAngle 4h @MayorAdler announces that Austin/Travis County restaurants and bars must stop dine-in food and beverage service from 10:30 p.m.-6 a.m., effective Dec. 31-Jan. 3. Violation is a criminal offense to not exceed $1,000 fine... Show this'

Take a journey west about an hour-and-a-half to Fredericksburg, a tourist draw in the Texas Hill Country, and the “shutdowns” are blamed on the same Governor who had previously pledged “no more lockdowns:”

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While it is county officials who instigated this current round of capacity reductions in Fredericksburg, a few facts need to be made clear.

  1. The Governor’s emergency executive orders still stand, and this allows counties to reduce capacity.
  2. It is up to local officials to pull the trigger on the capacity reductions, but …
  3. Local curfews are not part of what the Governor allows.

Clear as mud? It should be.

The Texas Constitution does not specifically address the governor’s executive power: it’s more or less an assumed “reserved power” that was previously used temporarily for hurricanes and wildfires, but has recently been tested in longstanding COVID-19 responses.


This has resulted in several Texas Legislators proposing ways to rein-in or define how the Governor can issue said orders. Republican Rep. Drew Springer (now Sen.-elect Springer) floated a bill that would set up an Emergency Powers Board consisting of the Governor, Lieutenant Governor, Speaker of the House, and chairmen of the House and Senate State Affairs committees.

Republican Rep. Valoree Swanson  filed a bill to erode the governor’s power to crack down on firearms and ammo during a disaster. Fellow Republican Rep. Briscoe Cain filed a bill which would restrict the governor’s ability to halt the sale or use of explosives, combustibles, or alcohol during a disaster.

The next Texas legislature begins in mid-January. Until then, an overview of state oversight on governors’ emergency powers may be found here.



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