After Montgomery County judge questions Gov. Abbott’s order, AG doubles down saying salons, bars, gyms can’t reopen Friday

Carlos Vasquez, left, and his nephew R.J. Vasquez, wait for customers at their family's barber shop Friday, March 20, 2020, in Houston. The barbers at family-owned barber shop estimate they have lost nearly half of their business due to the coronavirus. (AP Photo/David J. Phillip) (David J. Phillip, Copyright 2020 The Associated Press. All rights reserved)

HOUSTON – Texas Attorney General Ken Paxton doubled down on Gov. Greg Abbott’s executive order Thursday, after some county judges said it was “vague” and “unenforceable.”

Abbott announced Monday that the first phase of reopening Texas would begin Friday, with some businesses — including restaurants and retailers — reopening for business, provided they follow some minimum health protocols.

While many hoped barbershops, hair salons, bars and gyms would reopen, Abbott said Monday that health officials advised against it as people would be in close proximity to each other in these places. He said he hoped these businesses could reopen by mid-May.

However, some county judges, including Montgomery County Judge Mark Keough, said Abbott’s executive order could not be enforced because it was unclear.

Keough previously told KPRC 2 that the problem was that even though Abbott said those businesses would remain closed in his remarks Monday, his executive order didn’t say they were prohibited to open. Instead, the order merely advised Texans to avoid bars, gyms and barbershops.

RELATED: Montgomery County gym owner says he will reopen despite Abbott’s order

“People shall avoid visiting bars, gyms, public swimming pools, interactive amusement venues such as bowling alleys and video arcades, massage establishments, tattoo studios, piercing studios, or cosmetology salons," Abbott’s order reads in part.

Before he could enforce the order, Keough said he would require some clarification from the governor’s office. Without such clarification, Keough said he would not stop businesses from reopening.

Paxton sent a letter to Brazoria County Judge Matt Sebesta Thursday after Sebesta brought up similar concerns. In the letter, Paxton said the governor’s order was “neither vague nor unenforceable, and local governments are prohibited from allowing businesses to reopen unless they are recognized as essential or reopened services under the Governor’s order.”

In the case of bars, gyms, barbershops, tattoo parlors and other businesses that were not included in the first phase of reopening, Paxton said the “nature of these services requires in-person contact between customers and service providers."

Paxton went on to say that if any county issued an order to allow all businesses to reopen Friday, it would be “invalid” as the governor’s executive order supersedes “any conflicting order issued by local officials.”

KPRC 2 reached to Keough’s office Thursday for comment. Keough’s Chief of Staff, Jason Millsaps said county attorneys disagree with Paxton’s opinion about the clarity of the governor’s executive order. Millsaps said Keough won’t comment until Friday, to give the governor time to change or clarify his executive order.

What this means from a legal standpoint

KPRC 2 Legal Analyst Brian Wice weighed in on what the next legal steps are in this matter. This is what he says:

Because, as Ken Paxton correctly pointed out in his Attorney General Opinion sought by Brazoria County Judge Matt Sebesta, Gov. Abbott’s Executive Order ‘has the force and effect of law,’ county judges are not free to ignore the Governor’s order with impunity merely because they believe it is politically expedient or advantageous for them to do so. As the chief executive officer of Texas in our vertical system of governance, Gov. Abbott is, some might say, the toughest kid on the block. But disputes such as this are not settled in the schoolyard at 3:00 o’clock, they are decided, as this one will soon be, in a courtroom.

If Montgomery County Judge (Mark) Keogh, or any other county judge, insists on ignoring Gov. Abbott’s order that non-essential businesses remain closed, Gov. Abbott can ask the State’s chief lawyer, Mr. Paxton, to go to court as soon as practicable to seek an order that Judge Keogh cease and desist from urging non-essential business owners to violate the Governor’s order, and, by definition, the law. If a judge rules in Mr. Paxton’s favor and Judge Keogh persists, Mr. Paxton could ask the judge to hold Judge Keogh in contempt of court after Judge Keogh is afforded his rights to notice and a hearing,

As in any litigation, the party who does not prevail in the trial court can appeal. Given the weighty constitutional issues this matter presents, and because time is clearly of the essence, the usual appellate timetables would be expedited.

Read Paxton’s full letter below: