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

People wait outside an El Paso restaurant to pick up their food orders after the county judge ordered a shutdown of nonessential businesses. A state appeals court has halted the shutdown. Credit: Ivan Pierre Aguirre for The Texas Tribune

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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.

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.

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