El Paso Standard

County Judge Ricardo Samaniego’s shutdown order is valid, a district court judge ruled Friday afternoon.

State 34th District Court Judge William Moody upheld the order issued by Samaniego on Oct. 29. It took effect the following day and was scheduled for two weeks, with Samaniego saying it was needed with COVID-19 numbers spiking in El Paso.

At a late-afternoon press conference, Samaniego termed the ruling “a moral victory.” He said health-care workers deserve thanks for their efforts. El Paso County residents should remain at home unless they have to make an emergency trip or are essential workers and nonessential businesses should close.

“Now the county’s stay-at-home order remains in full force and effect,” Samaniego said.

His Oct. 29 order had been challenged, with El Paso Mayor Dee Margo saying he did not agree with it, and the El Paso Police Department refusing to enforce it. However, after Moody’s ruling, that changed.

Officer D. Mendez at Mission Valley Regional Command said officers were told Friday to start enforcing it with warnings.

“We will ask for compliance,” he told El Paso Standard.

If businesses refuse to comply, they may be cited starting on Saturday, Mendez said. The possible fines will vary.

The El Paso County Sheriff's Department has been issuing citations that carry a potential fine of $500 since the day the order took effect.

“COVID infections are out of control and continue to skyrocket with no end in sight,” the office stated in an Oct. 30 release. “We are hopeful that the citizens of El Paso will understand the seriousness of this issue and voluntarily comply with the judge’s order. Otherwise enforcement action will be taken.”

The Texas Attorney General’s office and 10 local restaurant owners asked Moody to issue a temporary restraining order, but after a Nov. 4 hearing, the judge announced two days later the shutdown edict could stand.

Last week, Samaniego ordered non-essential businesses to close, while grocery stores and big-box retailers could remain open. Liquor stores also can stay open while restaurants must end all seated service and only provide to-go orders.

In a letter to Gov. Greg Abbott, Samaniego said there has been “an enormous surge of COVID-19 cases and deaths. In the last three days alone, our Health Department has reported the deaths of 48 El Pasoans.”

He said the hospital capacity of COVID-19 patients is 49% and said the current situation “is not sustainable” and asked the governor to amend his Oct. 7 order and allow the closure of businesses in an area where the COVID-19 patent hospital capacity topped 30%.

“I cannot stress enough the strain our El Paso community is facing and will continue to endure without help and assistance. With the number of deaths we are experiencing, we are becoming overwhelmed at our county morgue,” the letter states. “On behalf of our resident and health care community in El Paso, who have expressed their urgent concerns in the attached letters, I urge you to recognize the crisis in our county and amend your order as set forth above.”

Many businesses have remained opened despite the order.

Justin Kaufman, the owner of the Back Nine Bar & Lounge, El Paso Drafthouse, the Brass Monkey and El Rey Muerto and two Ratio One 61 gyms, has refused to obey the shutdown order.

On Friday, he said he still would not follow Samaniego’s order. The decision by Moody would just cause more confusion in El Paso, he said.

“It’s going to impact us, but we’re going to stay open,” Kaufman told El Paso Standard.

He was not one of the 10 business owners who asked for the restraining order, but said he would join that legal effort now.

“I think they’re going to add me to it,” Kaufman said.

He said his four bar-restaurants and two gyms would stay open. There is only one option, Kaufman said.

“Move forward. We’re just going to stay open,” he said. “We can’t afford to close.”

Moody said the sole legal precedence he could find in this case came from the Spanish flu epidemic of 1918-19. That was the worst pandemic in world history, killing 50 million people, including 500,000 Americans and 20,000 Texans.

Cities ordered closures to try to reduce the spread of the deadly flu. Moody said Texas cities and counties did make efforts to reduce risks and infection.

“Those orders varied over time depending on the severity of the spread of that deadly flu,” he said.

The Texas Attorney General’s Office said it will appeal Moody’s ruling, saying it violates the Oct. 7 order from Gov. Greg Abbott allowing businesses to resume service on a limited basis.

“My office will immediately file an appeal with the Eighth Court of Appeals,” Texas Attorney General Ken Paxton said in a statement to El Paso Standard. “Judge Samaniego’s unlawful order blatantly violates Gov. Abbott’s executive order. This oppression of the El Paso community must end.”

A spokesman for Moody, who said the judge would not comment on his ruling, told El Paso Standard the Eighth Court of Appeals is located directly above their offices.

El Paso County Council of Judges Executive Director Michael Cuccaro said from there, it could end up before the Texas Supreme Court. At the Nov. 4 hearing, Moody said that outcome was highly likely.