At a press conference on Tuesday afternoon in Austin, Texas Gov. Greg Abbott set aside his mask, delivered grim news about the state’s novel coronavirus surge, and implored residents to follow “safe strategies to prevent the spread of COVID-19.”
“We don’t have to choose between either returning to jobs or protecting health care,” Abbott said. “We have the tools in place where we can achieve both of those ends.”
But leaders across the state have, for weeks, voiced frustration at the governor for prohibiting them from enforcing mask-wearing or rolling out slower reopening in areas where numbers may soon endanger hospital capacity. Conversations with legal and health experts and local officials paint a picture of the state’s urban leaders left helpless to enforce local restrictions—while watching the deadly virus’s hold on their communities worsen.
“The numbers are going up. The numbers of cases have gone up. Hospitalizations are going up,” said Dr. David Lakey, vice chancellor for health affairs and chief medical officer at the University of Texas System and a member of the Texas Medical Association COVID-19 Task Force.
Texas is one of more than a dozen states with a concerning upward trend, according to the Johns Hopkins University Coronavirus Resource Center. On Monday, for the fourth day in a row, the state hit a new daily record of 2,326 hospitalized COVID-19 patients. Across the state, there were 90,211 cases and more than 2,000 deaths. Locally disturbing figures were reported in Austin, San Antonio, Dallas, Houston, and elsewhere.
Despite this, Abbott has pushed the state forward with its lightning-fast reopening plan. Restaurants are now permitted to increase capacity to 75 percent, nearly all businesses are allowed to operate at 50 percent capacity, and—crucially—no local jurisdiction may impose stricter restrictions on its community.
All are prohibited from issuing orders that would require mandatory mask-wearing.
The Houston-based Texas Medical Center is the largest such facility in the world and has hit only a fraction of its base capacity and surge capacity. But Dr. James McCarthy, the chief physician executive of Memorial Hermann Health System in Houston, told The Houston Chronicle that he still had concerns about a COVID-19 surge impacting quality of care. “We need to protect hospital capacity for important healthcare needs,” McCarthy told the newspaper. “The one thing we don't want to see is where hospital capacity is strained in a way where the rest of the patients can't be cared for.”
Or, as Dr. Jeremy Finkelstein, an emergency medical specialist at Houston Methodist, put it: “We’re seeing people treat that as if COVID-19 is no longer an issue—and that's far from the fact.”
But even as Abbott prepared a presentation on Tuesday to emphasize the state’s hospital surge capacity, there are significant nuances to that potential. While Lakey acknowledged “there is surge capacity” in the state, it’s certainly still possible, he said, for one area—or many—to become overwhelmed. If El Paso can’t keep pace, hospital beds 750 miles away in Houston don’t do much good, for example.
Abbott’s office did not respond to a request for comment from The Daily Beast, but in a recent interview with Lubbock’s KLBK-TV, he scolded 20-year-old Texans for “not following these appropriate best health and safety practices.”
“They’re not wearing face masks, they’re not sanitizing their hands, they’re not maintaining the safe distancing practices,” he said.
But public health experts across the country have expressed concerns about mixed messaging—and specifically that aggressive reopenings may signal to the public that the danger has passed.
“People interpreted [reopening] as ‘this is over,’ when in fact all it meant was that the health-care system was in a better situation to care for people once they get infected,” said Lakey. “If you aren’t smart as you go to businesses, you could become infected. Just because the health-care system can take care of you doesn’t mean you want to be hospitalized.”
According to Dallas County Judge Clay Jenkins, hospitalizations in northwest Texas may already be approaching overwhelming numbers, which only bodes worse for the rest of the data.
“Think of hospitalizations as that part of the iceberg that you can see,” Jenkins wrote in a statement on Tuesday. “Below the water are all the people who are sick but that are not yet in the hospital.”
And if parts of the state do become overwhelmed, Lakey argued, “Then the government will have to take a step backwards in order to really slow it down.”
But without Abbott’s blessing, can they?
Some cities, like El Paso, were initially given breathing room as the state rushed toward reopening. But to ensure big-city officials proceeded with the governor's plan, Texas Attorney General Ken Paxton’s office went so far as to send letters to leaders in Dallas, Austin, and San Antonio warning that “unlawful” local mask requirements or shelter-in-place orders that go further than the state’s restrictions could be met with legal action.
Despite that warning, in the face of rapidly rising hospitalization and case numbers, Austin and Travis County officials extended a local “Stay Home, Work Safe” order to Aug. 15. It includes provisions like wearing face coverings in public, socially distancing from others, recommendations against social gatherings over 10 people, and practicing hand hygiene. It speaks to the absurd state of affairs that, without the ability to legally enforce his own orders, Mayor Steve Adler wrote a letter to the public over the weekend warning of an “overwhelming surge in admissions” and asking for the community’s help.
While some officials, like Bexar County Judge Nelson Wolff, have sent letters to the governor asking to be given the authority to enforce face masks, according to the Austin American-Statesman, Abbott has so-far denied such requests.
In Houston, meanwhile, Harris County Judge Lina Hidalgo and Houston Mayor Sylvester Turner said last Thursday that they were “getting close” to reimposing stay-at-home orders, in addition to reopening a COVID-19 hospital at a football stadium.
“We may be approaching the precipice of a disaster,” said Hidalgo, the highest-ranking executive for the third-largest county in the United States. “It’s out of hand right now.”
Since the state reopened on May 1, in the Houston area, there has been a significant increase in both overall cases and in hospitalizations, according to Dr. Umair Shah, executive director of Harris County Public Health.
As of Tuesday, Houston had more than 17,000 confirmed cases of the virus, with at least 500 new infections confirmed overnight.
“If that continues, we’re worried,” said Shah, who noted that, in addition to the reopening, people appeared to be more social on Mother’s Day and Memorial Day weekend, with warmer weather and bluer skies and graduations and protests. That likely won’t change in the coming weeks, especially considering Juneteenth, Father’s Day, and July 4.
“It’s a recipe for continued increase in transmission, in hospitalizations, and unfortunately adverse outcomes,” he continued. “Our real goal right now is to remember that we may be tired of the virus, but the virus isn’t tired of us.”
When it comes to a possible second lockdown, Shah said, “all of those considerations are on the table.”
“We do not have the tools that we had a couple of months ago because it’s been taken out of local hands,” he added. “All we can do is raise the alarm, raise our voices.”
As Randall Erben—an adjunct professor at the University of Texas School of Law who specializes in state and local government law and previously served as legislative director for Gov. Greg Abbott’s office—explained, the Texas Disaster Act of 1975 increased the governor’s powers once he first declared the COVID-19 epidemic a disaster in March.
“When a mayor or county judge issues an order that would be inconsistent with the order by the governor, it’s superseded by the order of the governor,” Erben told The Daily Beast on Tuesday. “The governor could order people to wear masks, but he has chosen not to. So the fact that he has said nobody can penalize—either civilly or criminally—someone not wearing a mask, that’s the final word on that issue.”
When it comes to Adler’s order in Austin—or potential orders from Houston officials—according to Erben, if they conflict with Abbott’s, they are “not legally binding.”
“They’re an admonition to the people of the city, but they don’t have the force or effect of law,” said Erben. If a business owner were in violation of Adler’s stay-at-home order in Austin, for example, it would be difficult to enforce in any meaningful way.
That doesn’t mean they don’t have some power.
“Most people I know are doing it,” Erben continued. “I don’t need the mayor to tell me to stay at home. I have a type 1 Diabetic daughter, so I’m being careful.”
After Abbott’s Tuesday press conference, Texas House Democratic Caucus Chair Rep. Chris Turner said in a statement that the governor had “failed all Texans” by “refusing to take the evidence-based actions needed to flatten the COVID-19 curve.”
“We need to slow the spread and see a decline in new cases—that was our goal before, and it should still be today,” said Turner. “Unfortunately, Gov. Abbott appears to have given up and is willing to accept week after week of increasing cases—more Texans sick, more Texans in hospitals, and more Texans dead.”
But Abbott has repeatedly argued that it’s up to the individual Texan to decide how they want to handle these unprecedented times. In a television interview last week, he said that, for Texans, “it is their choice about whether or not they are gonna go out and congregate with others or go to a store, whatever it is they may want to do. It is incumbent upon every individual in Texas to make sure that they are doing all they can not to get or transmit COVID-19 as we do open up the economy. You have your own control of whether or not you will be getting this disease.”
The politics of that perspective were certainly understandable to local officials, but at least for Harris County, said Shah: “The issue for us is how quickly we reopened.”
Shah noted that in recent weeks he’s been repeatedly asked if he thinks the speed at which the state eased its lockdown has contributed to the increased cases.
“The answer is ‘absolutely,’” he replied. “Of course it has.”