COVID-19 cases continued to soar in El Paso on Wednesday. Hospitals are at capacity, and the county has set up four mobile morgues to temporarily store bodies.
The same day, a state district judge heard arguments over the current business shutdown.
On Oct. 29, El Paso County Judge Ricardo Samaniego ordered all non-essential businesses to close for two weeks, to help slow the spread of the virus.
“Our medical professionals are overwhelmed,” Samaniego said as he announced the shutdown. “If we don’t respond, we will see unprecedented levels of deaths.”
The order affects salons, gyms and tattoo parlors. Restaurants can no longer offer in-person dining.
A group of local restaurant owners quickly sued Samaniego, claiming his shutdown violates Gov. Greg Abbott’s statewide executive order, which allows some non-essential businesses to reopen at 75% capacity.
Texas Attorney General Ken Paxton joined the lawsuit and filed for a motion for a temporary injunction to block the county order.
At Wednesday morning’s virtual hearing, Assistant Attorney General Todd Dickerson called the order “an unprecedented abuse of local emergency power,” arguing that Samaniego “did not have authority to supersede Governor Abbott’s emergency orders in such a manner.”
Attorney Mark Osborne, who represents the restaurant owners, also contended that Abbott’s mandate is the final word.
“Living in Texas, the county judge follows the governor,” he said. “We can try to persuade those above us, but ultimately we must follow their decisions until elections change those in authority. Under the rule of law, we do not get to each make our own decision, ignoring those in legal authority above us.”
Jed Untereker, an attorney with El Paso County, stressed that the number of cases is exploding in the region, noting that hospitalizations have increased more than 300% since the beginning of October. He argued the county judge has a right, under state law, to issue an emergency order.
“Our community is in a public health crisis,” he said. “People are dying, infection rates are through the roof and hospitals are at capacity. The Texas Disaster Act of 1975 expressly gives power to a county judge to take action in an emergency or disaster situation just like this.”
Untereker added that Samaniego isn’t doing anything that hasn’t already been done.
“There already was a stay-at-home order issued by the governor and the county judge months ago in April, when our numbers were drastically better than they are today,” Untereker said. “So what the county judge is doing now…is trying to use the same tools that the governor used himself to address a local concern, a local emergency. And that’s exactly what the legislature intended local officials to do.”
34th District Court Judge William Moody said he will rule on the injunction request by Friday.
In the meantime, the back-and-forth over the shutdown order has created confusion and division in the border region. El Paso Mayor Dee Margo said he was not consulted on the order and has called on businesses to stay open.
Some restaurants have kept their dining rooms open, and some other nonessential businesses are operating as usual.
The El Paso Police Department has said it will not enforce the order. That leaves enforcement up to sheriff’s deputies.
On Wednesday, the city reported a whopping 3,100 new cases. However, at a press conference late Thursday, El Paso Mayor Dee Margo said the count was actually lower — 1,537 — and that Wednesday's report included multiple days of data. He also announced a record-breaking 1,920 new cases in the county on Thursday.
Mallory Falk is a corps member with Report For America, a national service program that places journalists into local newsrooms. Got a tip? Email Mallory at Mfalk@kera.org. You can follow Mallory on Twitter @MalloryFalk.
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