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Law professor, local leaders discuss City of Austin's continued face mask requirement

The state mask mandate will be lifted on March 10. But the City of Austin said it will continue to enforce Austin Public Health's rules, which include masking.

AUSTIN, Texas β€” While the statewide mask mandate will be lifted Wednesday, Mar. 10, the City of Austin said Tuesday that it will continue to enforce Austin Public Health's COVID-19 rules, which include requiring people to wear face coverings. 

Austin Mayor Steve Adler explained to KVUE that last summer the Austin City Council authorized the local health authority to create rules to protect Austinites from the spread of COVID-19. 

"What we announced today [Tuesday] was that we would not be enforcing my order insofar as it conflicts with what the governor did. But the, but the health authorities rules are enforceable under an entirely different area of law," he said. 

RELATED: City of Austin to continue enforcing face masks despite State order

Adler added that he is appreciative of the businesses that have already said they will continue to have employees wear masks and to require customers to wear them as well. 

"We should be wearing masks not because there's a legal mandate to require us to wear masks. We should be wearing masks because it's the smart thing to do," Adler said. 

One of the businesses that will still be requiring masks is The Roaring Fork

KVUE spoke to General Manager Brad Miller on Tuesday about the City's announcement. Miller said The Roaring Fork is going to keep its restrictions in place regardless of the City's or State's orders.

"We're finding that a lot of our clientele appreciates the spacing that we're currently doing, as well as requiring guests to wear masks. And we just – we didn't feel, out of the safety of our staff and our guests, we felt that we're still going to require guests to wear masks when they're not seated at the table," he said, adding, "We've had some people that said, 'Hey, we're not coming back because we don't agree with your mask mandate or your mask policy.' And I was like, 'I mean, that's fine, too.' But out of, out of the safety for our staff and, and our guests, we're going to wear the masks. I think, what a lot of people don't understand is ... we can't as a, as a business, we can't afford to lose staff because of COVID."

Dr. Diana Fite, the president of the Texas Medical Association, said the association continues to recommend mask-wearing. 

"Well, there's no question the Texas Medical Association is strongly recommending that masks continue to be worn. People [should also] continue to socially distance, wash hands and get their vaccinations as soon as they're eligible," Fite said. 

Credit: Andrew Sanchez

When it comes to enforcing the City's mask requirement, one law professor told KVUE that may be tough. 

"Any local order – whether it's issued by the mayor or the county judge or the health authority, it doesn't matter – if it's in contradiction to an executive order issued by the governor, it's just ... it doesn't stand," said Randy Erben, an adjunct professor at the University of Texas at Austin's School of Law.

Erben has years of experience in state government and worked under three Texas governors. Most recently, he worked under Abbott as his legislative director. 

He said while local orders can still be in place, they can't be enforced with a penalty. 

"And they can have the order in place, which is fine, but they just can't enforce it with the penalty if it is, if it contradicts the governor's executive order because the governor's executive order is state law and state law is... over and above the law, any local order, regardless of who issues it," he said. 

RELATED: List: Businesses in Austin that are still requiring masks

Erben also touched on the part of the governor's order that says businesses can still enact their own safety measures. 

"So, a private business like H-E-B or Randall's can impose a requirement that if you want to come into their private, their private property, their premises, you can be forced to wear a mask," he said, adding, "What the City can't do is you're walking down the street and say, you know, 'I'm going to impose a penalty on you for not wearing a mask.' That's, that's not allowed."

The Austin Code Department told KVUE Tuesday that it will continue enforcing the City of Austin's health authority rules and, "During this time, Code and other City departments will be re-educating the community on those protections."

KVUE also reached out to the Austin Police Department for details on any type of enforcement it plans to do. A spokesperson said APD may have more information on Wednesday. 

Abbott's office and the Office of the Attorney General did not initially respond to requests for comment.  

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