The Volokh Conspiracy

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Crime

Challenge to Harris County's Face-mask Mandate

This case could head to the Texas Supreme Court soon

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Earlier this week, the Harris County Judge (the chief executive) ordered people to wear masks outside their residences, and wash their hands. Here is an excerpt of the text:

2.When outside their residences and in a public place, residents shall continue to maintain social distance of at least six feet.

3.Face coverings shall be worn except when:

a.Exercising outside or engaging in physical activity outside alone;

b.Alone in a separate single space, whether indoors or outdoors;

c.In the presence only of other members of one's residence, whether inside or outside the residence;

d.When doing so poses a greater mental or physical health risk, including exacerbating a pre-existing medical condition or including, but not limited to, anyone who has trouble breathing, or is unconscious, incapacitated or otherwise unable to remove the cover without assistance;

6.Residents shall wash their hands before leaving the residence and upon return, and shall take the following additional actions after leaving their residences:

  • Stay at least six feet away from others; and
  • Avoid touching the nose or face.

Violator would have to pay a $1,000 fine. In Texas, County Judges are executive officials. Harris County includes Houston, where I reside.

Today, a challenge was filed to the County Judge's order. The suit was filed by Steven Hotze, a prominent conservative activist in Texas. Here is the background section. The plaintiff seeks a Temporary Restraining Order. He expects a hearing to be set for Friday. An appeal to the Texas Supreme Court will certainly follow.

The Plaintiff raises claims under the state Constitution and local law. In short, the County Judge lacks authority to create new criminal offenses.

We used to argue about the government issuing mandates to buy broccoli. Now, we have mandates to wear masks and wash your hands.