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DA's office: Texas mask order isn't enforceable. Fort Worth, others focus on education

Fort Worth Star-Telegram logoFort Worth Star-Telegram 8/3/2020 By Tessa Weinberg and Luke Ranker, Fort Worth Star-Telegram

It’s been nearly a month since Gov. Greg Abbott mandated face masks statewide to help curb the spread of the novel coronavirus. But some cities in Tarrant County and across Texas aren’t issuing citations and fines to enforce it, and some have pointed to language in Abbott’s own order as the reason why.

Local officials across many of Texas’ largest metro areas have repeatedly called on Abbott for greater control and were among those urging Abbott to mandate masks statewide before he did at the start of July.

When asked if he’ll give mayors and county judges’ the authority to issue greater restrictions to help curb the spread of the novel coronavirus, Abbott often points to the need for officials to enforce the restrictions already in place.

“Everyone was clamoring, asking for a mask order. I imposed a mask order, and nobody’s enforcing it,” Abbott told WFAA Channel 8 on July 24, pointing to the fact that the city of Austin had yet to issue citations to violators.

But Austin isn’t alone. Neither has Fort Worth and smaller cities in the Fort Worth area, including North Richland Hills, Flower Mound and Grand Prairie. Arlington officials did not immediately respond to requests for comment.

Instead, they’ve prioritized education over citations — and they say their approach is effective.

But even if they wanted to, Abbott’s order prevents them from enforcing it with citations and fines, local officials argue.

Abbott’s executive order mandating masks allows local officials to fine people up to $250 for each violation after a person’s first warning. While officials may remove violators from businesses, the order also states that law enforcement cannot “detain, arrest, or confine in jail” anyone for violating it. But in order to issue a warning or citations, an officer must detain a person.

A spokesman for the Tarrant County Criminal District Attorney’s Office said Friday that since officers can’t detain under the order “it appears that law enforcement cannot legally enforce” the governor’s order.

“When the police pull you over for a ticket, they are detaining you while they write you that citation,” Tarrant County Judge Glen Whitley said. “And so, for the most part, these cities, as well as the DAs and as well as the sheriff’s folks have said, ‘We don’t believe we can enforce it legally.’”

Fort Worth Mayor Betsy Price also said the Tarrant County district attorney has cautioned law enforcement about issuing citations if doing so requires detaining the person. In response to a request for an interview, Price’s office said she was pleased with the mask compliance so far in the city, which she takes as a sign that residents are willing to come “together to help protect each other.”

“Our first approach with an individual not wearing a mask or a business not complying with the current order is education — and again, we’ve seen good response to that,” she wrote in a email.

Spokespeople for the Governor’s Office and Attorney General’s Office did not immediately return requests for comment.

In a July 10 post dissecting the language in Abbott’s mask mandate, the Texas District and County Attorneys Association raised the same issue.

“That language does perhaps leave the door open for a consensual encounter and a warning — although the word ‘perhaps’ ’is doing a lot of work in that statement — but we cannot for the life of us figure out how a law enforcement officer is supposed issue a citation to someone they are not allowed to detain for that purpose. (Maybe some city can repurpose its mothballed red-light cameras as mask sentries around town and just mail letters to anyone walking around sans mask? Who knows.)” the post read.

However, it went on to note that the order’s language may allow local officials to still detain, arrest and confine violators who defy local mask mandates. Whitley issued a new executive order Friday, extending Tarrant County’s mask mandate through Aug. 31.

Earlier this month, the Austin City Council went further than most and approved resolutions that could result in a business facing a civil lawsuit if employees on site are not wearing a mask and fines up to $2,000 for anyone violating a local health authority’s rules. As of July 21, no violations had been filed at Austin Municipal Court, according to the Austin American-Statesman.

Spokespeople for Dallas County and Houston said last week that they are also prioritizing education and outreach. In San Antonio, law enforcement has issued citations during inspections where businesses’ staff have failed to wear masks, abide by social distancing measures and post the proper signage.

Education over citations

In Fort Worth no citations have been issued for masks or large gatherings as the city focuses on education.

On June 27, code compliance officers canvassed nearly 2,000 businesses, handing out fliers about the rules and the importance of wearing masks. As of Thursday afternoon, the city had received nearly 350 complaints, mostly through a COVID-19 hotline, about masks and gatherings. Most have been handled over the phone to prevent exposure to city employees, said code compliance spokeswoman Diane Covey.

“Overall we have a really good community — we’ve seen people want to do the right thing,” she said in an email.

Fort Worth police Captain Mark A. Barthen wrote in an email Friday that, “the wording on the order has not played a role in our decision about how to enforce the mask mandate. We encourage voluntary compliance and have not had to take any action beyond that.”

In Grand Prairie, the city’s code compliance department has not had to issue warnings, as businesses and individuals have adhered to the orders when contacted.

“The governor’s order prohibits individuals from being ‘detained’ yet we can only enforce if we detain,” Grand Prairie Police Chief Daniel Scesney said. “That said, all contacts are consensual and we educate our citizens on the orders. If they do not have a mask, we provide one to them.”

In both Flower Mound and North Richland Hills, no citations have been issued. However, warnings are noted.

Matt Woods, Flower Mound’s environmental services director, said the town has received approximately 15 complaints related to capacity limits, social distancing and mask wearing and that they’ve issued warnings for approximately five businesses. Previous complaints were related to determinations of who qualified as an “essential” business.

North Richland Hills has received about 20 complaints, and in the event a person is warned for violating the mask mandate, the city makes a note in its police call system, city spokeswoman Mary Peters said.

“To date each complaint has been resolved with education resulting in compliance without the need for further enforcement action,” Peters wrote in email.

While cities have said that they’re seeing good cooperation with businesses, Whitley said greater enforcement should be an option to ensure residents comply with the mask mandate.

“I’m at the point now to where I believe we’ve got to say, ‘We’ve asked, we’ve strongly recommended, we begged, and if you still don’t want to do it, then we’re going to issue you a citation,’” Whitley said.

Whitley, who agreed with Abbott reopening businesses, said it’s frustrating to hear the governor put the onus on local officials who say Abbott’s own order is preventing them from taking action.

Public health experts said that local officials can still work to ensure compliance, even if fines or arrests aren’t an option. While the natural inclination may be to “mask shame” people and insist they wear a mask, “shaming doesn’t work,” said Catherine Troisi, an infectious disease epidemiologist at UTHealth School of Public Health in Houston.

Education is almost always preferred to mandates, said Diana Cervantes, a professor of biostatistics and epidemiology at UNT Health Science Center. Making initiatives work involves building trust and partnerships between public health experts and the community. That’s rarely accomplished with a regulation, she said.

“Citations get people to do something just enough so that they don’t get caught, whereas education gets people to do enough to actually prevent transmission,” Cervantes said.

In addition to education on masks’ effectiveness, more messaging and changing the social norm are also measures that can help. Troisi pointed to campaigns like Mothers Against Drunk Driving, and how a similar approach could help change the social norms so that, “if you are not wearing a mask, then you’re the outlier.”

“We can vote with our feet as well. And so if you go into a store, and it’s crowded and you can’t socially distance, and you see that people aren’t wearing masks, you can leave,” Troisi said. “So I think we need some of that behavior by people who do understand how important wearing a mask is, to help change those social norms as well.”

Whitley, who has long been a supporter of local control, said he hopes local officials’ authority will be restored.

“I wish I could say that was going to happen, but for the last 10 years the state has been trying to undermine local authority, whether it be in the way of tax caps or other things like that,” Whitley said. “I hope that in the course of this pandemic, they’re going to realize that we are a big state, and that we do need to give the authority to the local folks and not try to paint the same broad brush over all the counties.”

Arlington reporter Kailey Broussard contributed to this report.

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©2020 the Fort Worth Star-Telegram

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