Appeals court again halts El Paso County’s shutdown of nonessential businesses

EL PASO — A state appeals court late Friday again halted El Paso County’s shutdown of nonessential businesses that was scheduled to last until Dec. 1.

El Paso County Judge Ricardo Samaniego issued the shutdown order Oct. 29 in an effort to slow the latest outbreak of COVID-19 here, where total cases since the pandemic began surpassed 70,000 Friday.

A group of local restaurants and Texas Attorney General Ken Paxton sued to block the order after it was issued, arguing that it went beyond Gov. Greg Abbott’s executive order that outlines what limits can be placed on private businesses across the state.

Although Samaniego’s attempt to temporarily close nonessential businesses can’t move forward, businesses in El Paso County still must abide by its current restrictions, which limit capacity of most businesses to 50%, keep bars closed and ban restaurants from offering dine-in services after 9 p.m.

A state district judge here permitted the El Paso shutdown to stand last week while the issue played out on appeal. Samaniego extended the order after that ruling, but the 8th Court of Appeals again paused Samaniego’s order Friday, though it urged both parties to find some middle ground on restrictions that don’t violate Abbott’s statewide mandate.

The court allows “for the possibilities that parties might identify some stand-alone restrictions in [the county order] that would not be inconsistent with [Abbott’s order],” the court wrote. “None of the briefing before us has attempted to tease out any discrete restriction which might compliment or otherwise not conflict … and it would be inappropriate for us to attempt to do so here.”

County attorneys argued last week that Samaniego’s order could stand based on the provisions of the Texas Disaster Act of 1975. But Paxton’s office argued that the act supersedes local declarations. The opinion issued Friday sided with the state.

“If conduct is allowed under the Governor’s order, that County cannot prohibit it,” the judges wrote. “If activities are prohibited by the Governor’s order, the County cannot allow them.”

The decision Friday comes as El Paso County recorded 1,488 new coronavirus cases. The city also reported a total of 45 new deaths Thursday and Friday caused by the virus. About 1,130 people are hospitalized, including 317 in intensive care, according to city statistics.

In a tweet celebrating the decision Friday, Paxton did not mention the surge in cases but instead made references to tyranny and the upcoming holiday season.

“As the Court aptly put, ‘The public cannot have two sets of rules to live by,’” he wrote in the post. “A tyrant who thinks he can ignore state law cannot stop that. I will not let rogue political subdivisions try to kill small businesses and holiday gatherings through unlawful executive orders.”

Samaniego hit back later in the evening.

“So unfortunate that Paxton, the ‘Texas’ Attorney General finds the opportunity to gloat instead of coming to El Paso to walk along side me by the mobile morgues with 144 El Pasoans; or send his condolences to the families of his 741 constituents who died of COVID-19,” he tweeted. “I guess El Paso is too far for Paxton to comprehend that we too are his constituents. I intend to use my legal authority to do everything possible to protect our community. I pray that his rhetoric won’t discourage our courageous healthcare workers..we will always be grateful!”

Samaniego’s shutdown caused a rift between him and El Paso Mayor Dee Margo, who said Thursday he hasn’t been consulted about countywide restrictions for weeks. Margo said the city and county need to consider the local economy while they also try to slow the spread of the disease.

Since the beginning of the year, Margo said, about 26% of small businesses have closed, and more than 15,000 jobs have been lost because of the economic hit the city has taken.