Austin can prohibit late on-site dining over holiday weekend, judge rules. But the state could appeal.

Photo does not have a caption

Elia Montoya serves breakfast dishes to U.S. Rep. Chip Roy and his family at Juan In A Million in East Austin in May. Credit: Bronte Wittpenn/American-Statesman via USA TODAY NETWORK/REUTERS

A Travis County District judge upheld Austin’s curfew restricting when restaurants and bars can serve customers during New Year's weekend, after Texas Attorney General Ken Paxton sued the city and Travis County to stop the measure.

"The Court finds the State has not demonstrated a probable right to the relief sought nor imminent and irreparable harm," said Amy Clark Meachum, presiding judge of the 201st District Court.

The resolution came just hours before Austin’s order would start being enforced. Citing an increase in COVID-19 cases, Austin Mayor Steve Adler and Travis County Judge Andy Brown announced on Tuesday that dine-in food and beverage service is restricted both indoors and outdoors from 10:30 p.m. to 6 a.m., starting Thursday and ending at 6 a.m. Sunday. The measure does allow restaurants to offer drive-thru, curbside pick-up, take out, or delivery services.

After the ruling, Deputy Attor­ney Gen­er­al Aaron Reitz announced on Twitter that the state would appeal.

"It's not over," Reitz said.

Restaurants are currently allowed to operate with occupancy limitations indoors in Texas, and more than 2,500 bars and nightclubs have reopened by converting to restaurants, offering food and committing that alcohol sales are less than half of their revenue.

"Today’s ruling will help our community slow the spread of COVID-19, while allowing businesses to safely continue their operations through takeout, drive-thru, and delivery service options," Brown said on a statement. "I encourage everyone in Travis County to order food for takeout from a local restaurant and to celebrate the New Year safely at home tonight.”

The team of lawyers representing the state argued that Austin’s order contradicted the emergency orders issued by Texas Gov. Greg Abbott, which established the rules for operation of businesses and occupancy restrictions.

“There is a direct conflict here. Only one order can control and we’ve explained why the governor’s order is the one that should prevail,” said Todd Dickerson, part of the team that represented the state of Texas.

But the attorneys for the city of Austin and Travis County argued that their order is within the limits established by Abbott because it does not stop businesses from operating — it only restricts the way they provide service. Under the curfew, patrons are not ordered to leave at 10:30 p.m., but they could not be served on-site.

“It is our position that these local officials are in the best position to make the best decision for this jurisdiction,” said Travis County attorney Leslie Dippell. “In other words, one size does not fit all.”

The city and the county attorneys also asked Clark Meachum to consider the “public interest” and brought in Mark Escott, interim health authority and public health medical director for the City of Austin and Travis County, as a witness.

“The risk is not really theoretical anymore, because we saw what happened in New Orleans after Mardi Gras, we saw what happened in Boston and other places for St. Patrick’s Day,” Escott said. “Those kinds of activities surrounding special events can really create uncontrolled surge and we want to avoid that here.”

Escott said since Dec. 1, COVID hospital admissions are up 127% and ICU bed occupancy has increased 94% in Austin and Travis County.

Previously, Abbott tweeted that Adler didn’t have authority to issue a local order.

“My executive order stops cities like Austin from arbitrarily shutting down businesses,” he said. “The city has a responsibility to enforce existing orders, not make new ones.”

Earlier this week, the Texas Restaurant Association called on Austin businesses to follow Abbott’s guidance and said that “a curfew is not allowed.”

“Restaurants are deeply invested within their communities, and so they continue to do all they can to prevent the spread of COVID-19, often at tremendous cost,” the organization said on Twitter. “Closing indoor dining will not prevent holiday celebrations; it will simply move them from highly regulated businesses into completely unregulated spaces at a critical time in our COVID-19 response.”

Besides Austin, El Paso County has also ordered a similar curfew for this weekend, as it did for Thanksgiving and Christmas. The county has banned all social activities — including restaurant dine-in services — from 10 p.m. to 5 a.m. between Dec. 30 and Jan. 4 but allows take out and drive-thru service. After he set the Thanksgiving curfew, El Paso County Judge Ricardo Samaniego said that he took action after what he said was a “favorable” discussion with Abbott’s office and a representative from the Texas Attorney General’s office.

The U.S. Centers for Disease Control and Prevention has warned Americans to avoid crowds and poorly ventilated indoor spaces and recommended that people stay at home for New Year's Eve or celebrate virtually.

Disclosure: Steve Adler, a former Texas Tribune board chair, and the Texas Restaurant Association have been financial supporters of the Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.