Gov. Greg Abbott is cracking down on cities' enforcement of COVID-19 orders, but many already took a lax approach

This article is co-published with ProPublica, a nonprofit newsroom that investigates abuses of power. Sign up for ProPublica’s Big Story newsletter to receive stories like this one in your inbox as soon as they are published.

A few days after Easter, the Police Department in Lubbock received a call from a concerned employee of a car dealership on the southwest side of the Panhandle town.

Management had continued to flout safety orders imposed by Gov. Greg Abbott, part of an effort to curb the spread of the new coronavirus, according to the employee who said he was about to self-quarantine after coming into contact with personal protective equipment a customer had left in a traded-in vehicle.

It was the fifth time the city had received a complaint about the McGavock Nissan dealership in less than three weeks. The fire marshal’s office dispatched an inspector who confirmed that the dealership was not enforcing social distancing guidelines or sanitizing cars between test drives.

But the inspector issued no citation, instead passing along the information to “city hall for directive.”

The next day, on the opposite end of the sprawling state, police in the border town of Laredo were alerted to social media posts from two women, one doing nails and the other eyelash extensions, from their homes in violation of Abbott’s orders. Neither was a licensed cosmetologist.

Instead of issuing warnings or urging them to comply, as happened in Lubbock, Laredo police launched an undercover sting to catch the two women, resulting in their arrests.

As Texas now reopens at Abbott’s direction, under a much looser set of restrictions, a ProPublica-Texas Tribune analysis of complaint data in a dozen cities shows these disparate approaches to enforcement — particularly among businesses — were incredibly common across the state.

Cities and counties arrived at dramatically different interpretations of Abbott’s emergency orders. Austin, so far, has issued just two citations, while others like Laredo and Dallas have written hundreds of tickets, in addition to arresting a handful of business owners who defied orders to close. In one case, a smoke shop chain was cited 16 times in San Antonio but received only verbal guidance in Austin.

The erratic pattern foreshadows the struggles cities and counties now face as they interpret an entirely new set of regulations on reopening. That’s further complicated as enforcement has become a political hot-button issue across Texas and the U.S. Abbott, a Republican, has repeatedly changed his guidance as his party base grows more agitated.

Local officials say Abbott’s loosened regulations that limit the capacity of restaurants, movie theaters and other businesses at 25% — a cap that could increase to 50% next week — are also logistically tricky to enforce.

Until recently, Abbott appeared largely amenable to cities and counties interpreting his directives however they saw fit, deciding when to arrest or fine violators, warn them verbally, leave informational flyers or do nothing at all.

His first major emergency order provided for fines of up to $1,000 and jail time of up to 180 days or both.

Then, he changed his mind.

In recent weeks, Abbott and the state’s other Republican leaders have blasted local officials in Dallas and Houston for what they called overzealous enforcement of COVID-19 regulations, first zeroing in on Democratically led Harris County’s decision to fine residents for not wearing face masks, a penalty Abbott banned in his April 27 reopening order. The fights came to a head this month with the arrest of a Dallas hair salon owner who refused to shutter her business, an act of defiance that was supported by a right-wing group that launched a GoFundMe campaign a day before she reopened that raised $500,000 before it was disabled.

Abbott subsequently announced he would ban cities from arresting people for violating virus regulations and retroactively nullify any prosecutions. He also reopened hair salons sooner than expected.

Last week, the Texas District and County Attorneys Association issued guidance to prosecutors in response to Abbott’s changing directives. “If the governor is going to keep changing the tune he plays as he leads the state out of this pandemic, there is little incentive to put your own necks on the line to enforce an order that could be invalidated the next day.”

Houston Police Chief Art Acevedo said: “It’s just not enforceable. The second the political winds changed, he (Abbott) not only changed the rules, he left the local government and the local judges holding the bag. You just can’t trust that he’ll stand by the orders he makes in the future.”

In a statement, Abbott’s communications director John Wittman said: “Throwing Texans in jail who have had their businesses shut down through no fault of their own is nonsensical and the Governor will not allow it to happen. That is why he modified his executive order to ensure confinement is not a punishment for violating an order — however, fines and license suspension or revocation still apply.”

On Tuesday, Texas Attorney General Ken Paxton upped the ante again, telling three of the state’s largest counties that their decisions to extend stay-at-home orders despite the governor’s decision to ease up were “unlawful and can confuse law-abiding citizens.”

But for all the outcry and focus on extreme enforcement approaches, the ProPublica-Tribune analysis has found that for every example of aggressive enforcement, there are far more instances of leniency — and in some cases a lax approach that placed workers at risk of contracting the virus.

Officials in cities defended their individual approaches, saying they have done what is best to protect their communities while having to enforce unprecedented and complex regulations.

Laredo police investigator Joe Baeza, the department spokesperson, said in an interview that it was necessary to arrest the two women offering beauty services, though prosecutors could no longer pursue charges after Abbott revised his order to ban arrests.

“Who answers when several dozen people get sick from the same nail service?” he asked, adding the first cases in the city were from community spread, not travel. “Those potential risks were there, and that’s the reason why the city took the proactive stance” of closing the businesses.

“We won’t know who was right and who was wrong until all this is over with,” he said.

Lives and livelihoods

As Texas experiments with reopening and public health officials warn that doing so could unwind any progress the state has made on COVID-19, many local officials say they are now taking a step back from policing virus regulations — including officials who had eagerly wielded the enforcement authority Abbott initially gave them.

The ProPublica-Tribune analysis of call logs and enforcement records in a dozen cities found that the municipalities had received more than 23,500 complaints from mid-March to the beginning of May, a period when the stay-at-home rules were more clearly defined.

In six cities — Houston, San Antonio, Austin, El Paso, Lubbock and McAllen — roughly 300 citations were issued from mid-March to the end of April, far fewer than the number of violations found. For every 20 violations ProPublica and the Tribune identified in these six cities, authorities handed out one citation.

Complete data for all six cities is not available for the first two weeks of May, when businesses were operating under Abbott’s relaxed restrictions. But San Antonio, which keeps up-to-date enforcement data in a public dashboard, provides a glimpse of what may be happening in other places.

Early on, San Antonio received a flood of calls and, in most cases, found that the subjects of most of these complaints were indeed violating the orders. In the first 10 days of April, officials found violations in 49% of complaints they received, and they issued citations in about 3.5% of cases.

But the numbers dropped dramatically in the first 10 days of this month when the state moved to partially open dine-in restaurants: not only were complaints down, but officials found significantly fewer violations, now only about 31% on average. They issued citations in only 1.8% of cases.

Law enforcement as well as fire and inspection officials in cities across Texas said in interviews that they initially prioritized educating residents and business owners about the importance of stay-at-home and closure orders, and that overall businesses and citizens have done a surprisingly good job of it.

San Antonio Mayor Ron Nirenberg said his city’s goal was always education, not punishment. “Punitive measures and forced compliance is ultimately not the way we’re going to battle this disease,” he said. “It’s going to be data and information and transparency so businesses and the public can make informed decisions about public health.”

Dr. Eric Toner, senior scholar and scientist at the Center for Health Security at Johns Hopkins Bloomberg School of Public Health, said there’s no way communities can enforce their way into compliance. “We don't have enough police to give citations or arrest all the people who might not follow the guidance,” he said. “It requires leadership; it requires our elected officials getting on television and saying you really must do the following and here’s why it’s important to you.”

In Lubbock, officials checked in repeatedly on the Nissan dealership, but reports indicate management continued to ignore certain safety guidelines in place at the time.

In late March, inspectors found there were too many customers in the showroom. Management promised to comply and received no citation.

About a week later, the Lubbock fire marshal’s office paid another visit to the dealership after speaking with a worried partner of an employee who said that managers had instructed workers to ignore the fire marshal’s instructions and hide if an inspector showed up, records show.

According to city records, the inspector observed more than 10 employees on the sales side. Dealer principal Brent McGavock argued that he was allowed to have that many because the service department was considered an essential function.

“I don’t want anybody to get sick, I just want to make a little money through all of this,” McGavock told the inspector after mentioning that one employee in his San Marcos dealership had already tested positive.

He then boasted of his connections to a city councilman and local Congressman Jodey Arrington, whom he called his best friend, according to the report.

McGavock disputed the city’s account in an interview, saying the congressman was “an acquaintance” whom he grew up with and reached out to for clarification about the state’s orders.

The dealership’s director of operations, John Pate, conceded that it was still learning the rules when the city first determined it was in violation of state orders. But he said he was never told about the mid-April violation, which he called “bullshit” because the dealership had immediately closed the showroom and ceased test drives after receiving delayed clarification from the city.

McGavock said, “My reputation making a buck means nothing to me over the safety of the people that work for me.”

On April 14, after witnessing sales representatives taking test drives with customers, the fire marshal inspector submitted a report to the city’s business development director, Brianna Gerardi, who said she’s done everything she can to get repeat offenders to voluntarily comply. She even tried to get a local chapter of a state auto dealer association to convince the Nissan owner to follow the rules, but then the federal government expanded the list of essential businesses to include car sales.

“It's such a complex issue,” said Gerardi, explaining the difficulty of implementing rules when they are constantly changing. “You are dealing with human beings and both their lives and their livelihoods.”

The business never received a citation.

Using discretion

In Houston, the state’s largest city with a population well over 2 million, Fire Chief Samuel Peña said his inspectors initially reserved the few citations they handed out for repeat offenders: businesses that refused to comply, including an adult entertainment store that claimed to be essential because it sold products that could be considered medical equipment.

In the early stages of the crisis, Peña’s inspectors might spend two to three hours responding to a single call, ping-ponging between businesses to determine whether a sporting goods store could remain open because it sold guns or a department store because it sold mattresses.

The Houston Fire Department fielded an average of 78 calls complaining of alleged violations each day in April, and it handed out 10 citations from March 18 to May 12.

“Look, on a personal level, I get it,” Peña said. “It’s these small businesses especially, that’s their livelihood. And that’s why we gave the inspectors the discretion to try to handle it at the lowest level and not go to the stick right away with a fine or any of the penalties.”

Houston has been taken to court over at least one of its enforcement decisions: shutting down a strip club that reopened under Abbott’s 25% rule, arguing that it was primarily a restaurant with added entertainment. The courts ultimately sided with the business.

ProPublica and the Tribune found certain industries showed up in complaint call logs again and again. Many of them, like grocery and hardware stores, were open because they had been deemed essential though callers alleged they weren’t requiring customers to stay 6 feet away from one another. Call centers were particularly prevalent, but the ProPublica-Texas Tribune analysis could find no citations issued against any of the companies.

In El Paso, home to 19,000 call center workers, managers did their best to hide glaring safety and social distancing violations from enforcement officials, according to city complaint reports, as well as interviews with more than a dozen employees and their loved ones. Supervisors instructed employees to hide, flee their workspaces and spread out when inspectors arrived.

At the Alorica East call center, the company’s largest site in North America, employees said management was dismissive about safety concerns during the early weeks of the pandemic. The company only began implementing social distancing and other protective guidelines after employees said management told them workers tested positive. Neither the company nor the El Paso health department would confirm those cases.

Still, as of last week the company had a training class that exceeded the 10-person gathering limit and an estimated 200 to 300 employees coming in every day, according to an employee who continued working from the office until Tuesday, when the call center temporarily shut down.

“There’s always someone ready for us to be replaced,” said the employee, who asked to remain anonymous because of fear of retaliation. “For the most part, we all know where we stand as employees for that company.”

Alorica spokesperson Sunny Yu said prior to the shut down, the majority of the site’s 1,000 employees were already working from home, which allowed remaining staff to practice proper social distancing. Yu also defended the company’s response to the pandemic, saying Alorica was early to adopt safety measures including temperature checks, masks and virtual meetings.

Despite more than 295 complaints about Alorica and a handful of other El Paso call centers, as of last week fire marshal inspectors had not cited violations during their repeated visits. El Paso enforcement officials say they lack the authority to do so under Abbott’s orders, which state essential businesses “should” follow federal health guidelines rather than “shall.”

“Tired of it”

Lubbock Assistant Fire Marshal Michael Jones, who has worked on developing the city’s enforcement strategy, says the city knew calculating and implementing occupancy rates would be a challenge as the governor began to allow certain businesses to open at limited capacity starting May 1. Because the department does not have enough employees to figure out exact occupancy loads for every business, the city instead created instructions for business owners to determine it themselves.

“There’s no way you can be at all 8,000 to 10,000 businesses to calculate them, so you have to figure out a way to get them close enough to where they’re in compliance,” Jones said.

Since Abbott began loosening restrictions and businesses started to reopen, Peña, Houston’s fire chief, said his department has stopped issuing citations altogether, though the volume of complaints remains high. Instead, it is focusing on education. “It started getting very muddy,” he said of the governor’s changing stance on enforcement. “We’re not going to expend city resources to enforce an order that’s not going to be backed up.”

In the early stages of pandemic response, Peña said the city required more than 220 firefighters to quarantine at the same time because of potential exposure to COVID-19. That number is down to 34, but he’s worried it could begin to climb back up.

Toner of Johns Hopkins also cautioned that progress could be easily unwound as businesses start opening doors and some semblance of people’s previous activities resumes.

“People are antsy and people are tired of it and they need to work because they have no money so now is the time for leaders to, I think, stand up and say … now is not the time to give up."

Signs of frustration were clear in San Antonio early this month, when a police officer found a sports bar open for business on Cinco de Mayo. About 50 people were crowded inside, according to the city’s enforcement data. None were social distancing, and none wore masks.

The officer gave the owner a citation. He said he’d accept the ticket and fight it in court.

He could no longer afford to remain closed, he said.

Laredo, which had issued 12 times the number of citations for violating stay-at-home orders as San Antonio, a city several times its size, has now significantly dialed back its enforcement in light of the shifting state direction. The city had created a task force of roughty 75 people to enforce the stringent stay home orders. A few weeks into Abbott’s scaled-back orders, that number was 15.

Last weekend, officers even gave the green light to mariachi groups, who asked if they could take jobs to sing serenades on Mother’s Day, when their services are in high demand across the city. Officers gave them the go-ahead, as long as they performed outside and respected the city’s COVID-19 10 p.m. curfew, which remains in effect through the end of May.

The city had one more recommendation, one they could no longer enforce with fines: that anyone in a mariachi group not singing wear a face mask.

Chris Essig contributed to this report.