EL PASO, Texas — Note: This article was originally published in the Texas Tribune.
A state district judge on Friday ruled that the El Paso county judge's order temporarily shutting down nonessential businesses amid a spike in COVID-19 cases can stand, dealing a setback to a group of private businesses and the state of Texas that tried to have the order tossed out.
The order was issued Oct. 29 by El Paso County Judge Ricardo Samaniego in an effort to curb the spread of the virus, which has overwhelmed hospitals in the county. It was unclear Friday afternoon whether he will extend the order beyond the initial two weeks.
Judge William Moody said during the brief hearing that although attorneys could not cite a legal precedent for or against the shutdown, they did find a historical one in local decisions made during the global influenza epidemic of 1918 and 1919.
“Cities like Dallas and San Antonio developed their own unique responses to the deadly flu in a manner that their elected local officials felt was necessary to protect the health and financial interests of their individual communities,” Moody said. “Those order varied over time depending on the severity of the spread of that deadly flu.”
The lawsuit against the judge’s order was brought by a group of local restaurants whose owners argued they are following all necessary health guidelines as they remained open and that another closure could decimate their businesses.
Texas Attorney General Ken Paxton intervened in the lawsuit, arguing it was unconstitutional and went beyond the restrictions in Gov. Greg Abbott’s own executive orders, which outlines what limits can be placed on private businesses. Attorneys for the state of Texas said after the ruling Friday they would file an appeal.
The decision comes the same day the city reported an additional 1,300 cases of the disease, adding to a growing tally that has strained the county's health system. The local convention center has been converted into a makeshift hospital to accommodate more patients and local hospitals have started to airlift non-COVID-19 patients to other cities to free up bed space in their facilities.
Also on Friday, Abbott announced the U.S. Department of Defense has deployed three U.S. Air Force Medical Specialty Teams to assist local officials.
