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Ken Paxton sues after Austin bans late on-site dining for New Year’s weekend amid COVID-19 surge

By Juan Pablo Garnham
Texas Attorney General Ken Paxton said Wednesday that he has sued the City of Austin and Travis County, a declaration that came a day after local leaders declared new restrictions for when restaurants and bars can serve customers during New Year's weekend.
Paxton filed a petition for temporary injunction and a temporary restraining order in Travis County District Court targeting orders made by Austin Mayor Steve Adler and Travis County Judge Andy Brown. Citing an increase in COVID-19 cases, they announced that dine-in food and beverage service must be restricted indoors and outdoors from 10:30 p.m. to 6 a.m., starting Thursday and ending at 6 a.m. Sunday. The measure did allow drive-thru, curbside pick-up, take out, or delivery services.
"Mayor Adler and Judge Brown do not have the authority to flout Gov. [Greg] Abbott's executive orders by shutting down businesses in Travis County and our state's capital city," said Paxton in a statement. "The fact that these two local leaders released their orders at night and on the eve of a major holiday shows how much contempt they have for Texans and local businesses."
Announcing the restrictions for Austin at a Wednesday morning news conference, Adler said the order — which carries a maximum $1,000 fine but no jail time — doesn't violate state regulations because it's "just an operational constraint." He added that "the reason that we are doing this is because it focuses on the activity where people are together without wearing masks." Both the mayor and the county judge said they deemed the measure necessary given the increase of cases in the area.
"If the state is not going to act, then communities have to be able to act to protect themselves. Tomorrow, that's going to be the issue that's in front of the court," Adler said on Wednesday evening in a livestream, reacting to the lawsuit. "Even if the court rules tomorrow that everyone has a right under the governor's orders to go out and take your mask off when you are around other people at a restaurant on Thursday, Friday, and Saturday night, that doesn't mean that you have to do it. We are asking everyone in this community to really think hard about what they are doing, about what they can do to contribute during this peak time."
Abbott had tweeted on Tuesday that Adler doesn't have authority to issue such 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."
But the governor had previously remained silent about similar orders in El Paso County that covered the Thanksgiving, Christmas and New Year's holidays. The attorney general's office didn't immediately respond to a request for comment on why El Paso's orders didn't spark the same reaction.
A spokesperson for the governor said that the already-existing measures have worked in El Paso and the Midland-Odessa region.
"The proven course of action is to enforce the existing protocols. That strategy was effective in slowing the spread over the summer and containing COVID-19, while allowing businesses to safely operate," spokesperson Renae Eze said in a statement. "The protocols work, but only if they are enforced. The State of Texas has assisted with that enforcement by deploying additional TABC officials to ensure compliance with the protocols; but local officials have the ongoing duty to enforce occupancy limits under law, as they did before the pandemic hit."
Earlier on Wednesday, Paxton sent a letter to both Adler and Travis County Judge Andy Brown that said Austin's order was "unlawful and unenforceable" and threatened legal action if they don't "immediately rescind or, at a minimum, modify your orders" so they comply with the state's regulations.
During his press conference, Adler encouraged Austinites to support restaurants through delivery and take out and "tip and overtip, because these people and these businesses are taking a severe and significant financial hit for the greater good, and we as a community can help mitigate that."
Austin and Travis County officials warned that the area has seen a troubling rise in COVID-19 cases and they are worried about hospital capacity. In the last month, the county's positivity rate — the percentage of tests that come back positive for COVID-19 — and ICU bed usage have almost doubled. New daily cases have more than quadrupled in the same period, according to the county's COVID-19 dashboards.
"Today in Texas, COVID-19 represents one in five of every person hospitalized," said Mark Escott, interim health authority and public health medical director for the City of Austin and Travis County. "The policies that we've had have not worked to curb the spread of the disease … Now it's the time to reconsider those decisions so that we can protect Texas."
On Twitter, 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's tweet said. "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."
Last month, El Paso County Judge Ricardo Samaniego announced a similar curfew for Thanksgiving as COVID-19 cases increased in the border county. And earlier this month, Samaniego issued a similar measure for Christmas and New Year's celebrations.
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 issued the Thanksgiving order, Samaniego said that he did so 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.
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Popular
Hensel Phelps created an iconic gateway into the Hill Country with the Austin 360 Bridge. (Hensel Phelps)
What would Austin be without its City Hall, Central Library or iconic 360 Bridge?
For 50 years, Austin developer Hensel Phelps has shaped Austin with city-focused landmark developments across the metro, gracing the top spot on Austin Business Journal's best general contracting list for years in a row.
In 1972, the company broke ground for the first time in Austin with the Town Lake, or Mopac Bridge project, connecting the developing areas of West Austin to the rest of the city.
Hensel Phelps broke ground for its first project, the Mopac Bridge, in 1972. (Texas Freeway)
The Town Lake Bridge was one of eight available bridges in Austin at the time of construction. (Hensel Phelps)
Since then, it's headed several projects, including:
- The Pennybacker (360) Bridge: After the Town Lake Bridge success, the company set out to build the world's second cable-supported bridge. Newcomers and native Austinites alike take to the nearby 360 Bridge Overlook Trail to see sunset views of the cliffside, copper-colored landmark.
- Dell Diamond Baseball Stadium: Since it opened in 2000, the Round Rock Express, the metro's Triple-A- Minor League baseball team, has held countless games at this 85-acre, 11,000+ capacity stadium.
- Samsung Fab 2 Chip Fabrication Facility: When Hensel Phelps helped Samsung with its second semiconductor project in the area in 2007, the grand opening ceremony was commemorated with the University of Texas Longhorn Band, UT Cheerleaders, pop singer LeAnn Rimes and a bald eagle to boot.
- Austin Central Public Library: With six floors, a rooftop garden and plenty of window views of downtown, Austin's Central Library project quickly became a central hub for the city when it opened in 2017.
- Darrell K. Royal-Memorial Stadium: The company has had a hand in all major expansions of the Texas Longhorns' longtime football stadium.
Austin's new Central Public Library first opened in 2017. (Hensel Phelps)
Through dozens of projects dotted throughout the region, Hensel Phelps' Southwest district manager and Vice President Brad Winans said the company's focus has always been the public sector.
"That's where we think we support and develop the city, from truly grassroots, truly local support and involvement in the community," Winans said. "Our job is to develop things that truly support the city, not specific to one business."
Austin's City Hall was constructed with native Texas limestone and built with sustainability in mind. (Hensel Phelps)
A University of Texas graduate and 30-year employee, Winans said that the company's 2004 City Hall project felt most impactful to the community. The building, built from both native limestone and recycled materials, embraced sustainability and high-tech qualities, including solar panels in its garage, while maintaining a classic Texan identity.
"It's a very hard industry to be a part of, but it's also very rewarding," Winans said. "For me, City Hall means a lot because the back in the day, we called it 'The Jewel,' and so it's great to be part of that."
The company has constructed at Austin-Bergstrom International Airport in the past and will continue to help expand the airport. (Hensel Phelps)
With 50 years under its belt, Winans said the company will continue to work on the "endless" development opportunities coming to the city, from expansion of the rapidly-growing Austin-Bergstrom International Airport to projects in the tech sector.
"Everybody seems to want to come to Austin," Winans said. "It'd be nice if things did kind of spread out a little bit, but right now there's still a very eager push to develop in and around Central Texas and I think (Hensel Phelps) will be a major part of that."
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(San Antonio Spurs, LLC)
Starting the next season for the San Antonio Spurs, you’ll see an Austin-based financial tech company on the team’s uniforms.
Self Financial announced a partnership with the Spurs this week, in which a patch with their logo will replace where Frost's was on the jersey.
RC Buford, chief executive officer for Spurs Sports & Entertainment released a statement on the partnership, which will involve community engagement. The organizations are launching an annual $10,000 award that will be presented to a leader of a local nonprofit or community impact organization.
“Self builds credit, the Spurs build talent and both build dreams,” Buford said.
“Our partnership will draw parallels between people looking to build credit and a talented young group on the basketball court committed to building a championship team. We believe the Self-branded Spurs jersey will become a symbol of this mission—self-improvement in pursuit of building dreams.”
This trails another announcement earlier this year from Self as the official credit building sponsor of the Moody Center.
At the beginning of the year, the team of nearly 300 employees switched to a new office at 901 E. 6th St. to accommodate the growing team.
Priding itself on helping people build their credit, Self launched in 2015 after CEO James Garvey went through his own credit mishap. Automatic payments on his credit card weren’t set up correctly. Months passed, causing his credit score to dip.
The Self team set up credit builder plans to help people budget and meet their financial goals. Here’s how it works: plans range from small to extra large, with the small requiring $25 a month for two years and the largest $150 a month for a year. With that, users can track their credit score and automate payments with the option to cancel anytime.
Currently, Self has more than a million active customers, and Texas is its top market.
Self is working with Spurs guard Josh Primo as a brand ambassador. In 2021 at 18 years old, Primo moved to the U.S. from Canada and became the youngest San Antonio Spurs player ever.
“As a young international player, Josh has no credit history in the US, and represents millions of young people who need to build credit and are working hard to achieve their dreams and goals,” Garvey told Austonia via email. “We’re excited to work with him as he gets started building credit and he continues to build his career.”
On Thursday, Self will be the presenting partner for the Spurs 2022 NBA Draft festivities, which will include official watch parties in both San Antonio and Austin.
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