Whose Orders To Follow? The City Or Hays County?

Staff Reports

Several cities in Hays County have issued orders that impose restrictions on the community and businesses to limit the spread of COVID-19.

However, residents have questioned how things work when municipalities and the county’s orders differ on their restrictions and timelines.

According to the Texas Government Code, Section 418.108 subsection H (1) “the jurisdiction and authority of the county judge includes the incorporated and unincorporated areas of the county; and (2) to the extent of a conflict between decisions of the county judge and the mayor, the decision of the county judge prevails.”

The order signed by Hays County Judge Ruben Becerra section 4 states “that this order shall be applicable on a county-wide basis, except that a more restrictive order duly-authorized by a municipal government within a city’s corporate limits shall control within that municipality.”

In other words, if a city issues an order that is more restrictive than the one issued by the county, then the community within that the city’s jurisdiction is subject to the municipality’s order over the county’s.

For example, the City of San Marcos imposed new restrictions on Tuesday, March 17, which prohibits gatherings of ten people or more and orders all bars to close and prohibits the consumption of alcohol on the premises.

On Wednesday, the City of San Marcos clarified their most recent order does not require eating establishments to shut down their dining room but to take measures to ensure no more than 10 people occupy the same space or dining room at one time.

The order encourages restaurants to provide take out or no-contact delivery food service designed to limit exposure between individuals. The restrictions are effective until April 1.

Becerra also issued an order on behalf of Hays County that prohibits gatherings of ten people or more.

The county’s order is in effect until May 14, but it doesn’t close bars entirely.

The Hays County order includes a recommendation from the local health department encouraging restaurants, bars, and retail establishments to restrict the public from accessing areas that will not allow guests who did not arrive together, to be seated six feet apart.  

Under the power of the Texas Government Code, under local disaster declarations, the Mayor and the county judge are granted the authority by the state to issue orders that respond directly to the crisis or disaster.

Because the county’s order lasts longer, it may be classified as “more restrictive” and could supersede the orders issued by cities such as the City of San Marcos and the City of Kyle.

Or the cities that have signed orders closing bars and restricting restaurants and local businesses to the number of guests allowed to be served at one time may be the ones considered “more restrictive.”

There is no clear definition of what “more restrictive” entails or means, so it may take a decision from the Texas Attorney General to find out whose order supersedes whose. 

Until then, it’s advisable to follow the city’s current order until it expires. When the most recent order signed by the Mayor expires on April 1, the March 16 order is automatically reinstated (prohibits gatherings of 50 people or more).

That is unless the Mayor changes the expiration date on the most recent order or signs an entirely new order.

The orders currently in effect in the City of Kyle, the City of San Marcos and Hays County are below. Other cities across Hays County are reportedly writing orders for their city’s.

On a side note, at a press conference yesterday in Tarrant County, Governor Greg Abbott stated he new action to limit public gatherings throughout the state.•

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