Thread by @chucklindell

The remote hearing over AG Paxton's bid for a court order blocking the pandemic-related business curfew in Austin and Travis County is under way before District Judge Amy Clark Meachum.

The holiday weekend orders, banning dine-in food and beverage service from 10:30 p.m. to 6 a.m. tonight thru Sunday morning, so Paxton office requests a ruling before 5 p.m. tonight.

Judge says she'll try to rule by 5 pm, but says it will depend on length and depth of hearing, which is on an injunction instead of faster temp restraining order with at least 1 witness, more arguments.

Paxton lawyer: Abbott's emergency order has the force of a state law under the Texas Disaster Act; so if local orders conflict with Abbott order, the local rules are preempted.

State emergency law also makes the governor, not county judges/mayors, the focal point of the response to a state emergency, AG's lawyer says.

AG rep: "We have 254 county judges and countless other city managers in Texas. What would happen when these other local officials down the line decide they don't like Gov. Abbott's ... orders?"

Travis County lawyer: Order blocks - for a limited time - dine-in beverage, meal service but allows businesses to continue curbside, takeout and delivery. Says Texas Disaster Act allows local rules like this. "No language requires a business to close."

Dr. Escott, the local health authority, will testify about the need to limit virus exposure during a local surge while hospital capacity is beginning to stretch thin, county's lawyer says.

City lawyer also disputes Paxton calling the order a forced business closure; says "there is no such thing in this order." Limited ban on dine-in service does not include delivery, curbside.

El Paso, San Antonio have had similar dine-in time limits in place for more than a month without being objected to by the state, Austin's lawyer Sameer Birring says.

Judge Meachum picks up on that argument, asks AG's lawyers why similar orders in Bexar County, San Antonio, El Paso County were not challenged: "Why are you proceeding with this action when you didn't choose to proceed in that?"

Todd Dickerson, AG office, responds: Austin, Travis orders clearly restrict services allowed by the Governor. Just because other areas may be getting away with something illegal does not affect this case and "is virtually irrelevant to the issue at hand."

Judge presses AG lawyers for clarity. Will her ruling affect any other city, county dine-in time limits? She fears confusion. Reply: AG seeking ruling affecting only Austin, Travis County.

Judge asks if there isn't a "political fix to this." Couldn't Gov. Abbott issue an order specifically preempting Austin/Travis dine-in orders "rather than having a district court judge decide?"
AG lawyer: Can only speak to the legal issues in case, can't speak for Abbott

Hearing now on 10 minute break.
State presents no witnesses.
When return, Dr. Escott will testify on behalf of Austin, Travis on the medical reasons for the curfew on dine-in service.

We're back.
State objects to Dr. Escott being called as witness to show context for why the dine-in orders were given. Says this is purely a legal, not factual issue. Overruled, Escott called.

Dr. Mark Escott, interim health authority for Austin, Travis County, is in charge of the local pandemic response.
"Unfortunately, everything is rising."
448 hospitalized, 138 in ICU, 85 on ventilators, 81 new admissions.
Ventilator use up 98%, admissions way up since Dec. 1

Escott: We are seeing widespread uncontrolled transmission of COVID-19.
Spread for months has been fueled by face to face contact of people in close proximity for more than 15 minutes, he says.

Escott: Dec. 29 dine-in orders "target that area of risk in a very surgical way, if you will." Goal was to identify where highest risk is, such as the upcoming holiday, and limit circumstances of transmission.

Escott: Orders require no business closures.
"We've really worked hard for many months to find that balance... We wanted to create an order that is as minimally impactful as possible but still achieve that goal of minimizing that risk."

Escott: Texas today reported that there are 15 ICU beds left in counties surrounding Austin.
Staffing an issue too -- 269 staff requested by area hospitals but only 140 filled. "We don't have enough staff to manage what we have today."
Fears coming surge.

Escott: "These are the absolute minimal things that we could do. If we had the latitude to do more, we would do much more."
Recommends restricting dine-in during current surge, allow take away, but says orders tried to find a balance to help businesses.

Focus was "on the most risky time over the three-day period. We felt it would help mitigate that risk of large numbers of people gathering together to celebrate and hopefully help us to flatten the curve," Escott says.

AG lawyer on cross: No need to wait until two days before New Year's, city could have acted sooner? Escott: There was ongoing discussions on nature of orders, how long/how restrictive they should be.

AG's lawyer notes that the city, county have not acted to limit other activities seen as equally risky for virus transmission than eating in restaurant, such as flying in a plane, working out at a gym or going to the movies.

Judge has no questions for Dr. Escott. He's excused.

No more witnesses.

Judge seeks clarification on what would happen if curfew takes effect tonight at 10:30.
City lawyer: it is the action of providing food or beverages after 10:30 that is not allowed. Customers not required to leave BUT must wear masks. Curbside, pickup can continue.

Judge: They can't eat at the table after 10:30?
Lawyer: Correct.

Now time for final arguments
(I'm going to tweet only anything new I hear. Fingers getting tired).

AG lawyer: Abbott order says local orders cannot be more restrictive than his, and a limit on hours of operation is clearly more restrictive that an Abbott order that specifically allows dine-in service.
Says city, county have not addressed that.

AG lawyer says similar orders from other counties are not relevant to Austin, Travis orders that "clearly conflict" with Abbott's pandemic order. Adds that a lawsuit against El Paso County's limit on dine-in hours will be filed "imminently."

Hearing is over.
Judge says she will review the "voluminous" record, filings and hopes to rule before 5 p.m.
"I am going to take every last bit of time" available and "rule with some haste."