Texas sheriffs refuse to enforce governor's mask mandate despite surge in coronavirus cases

Several Texas sheriff’s offices and police departments have refused to enforce the governor’s recent executive order requiring face masks in public despite an increase in coronavirus hospitalizations and the statewide confirmed infection count nearing 230,000 as of Thursday.

Denton County Sheriff Tracy Murphree, in particular, pointed out the “hypocrisy” in asking police to enforce a mask mandate weeks after many officials failed to condemn mass gatherings of protesters who took to the streets after the death of George Floyd, many of whom called to “F the police.”

Gov. Greg Abbott, a Republican who previously eased lockdown measures, issued an executive order last week requiring everyone in counties with 20 or more coronavirus cases wear a facial covering in public. The order said law enforcement cannot detain, arrest or confine anyone who does not wear a mask but can issue fines of up to $250 if someone first ignores a verbal or written warning.

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The mandate also gave local authorities discretion to limit gatherings to 10 or more people.

Law enforcement officials in at least eight counties – including Denton, Houston, Montgomery, Gillespie, Upshur, Kerr, Nacogdoches and Panola – have since said they will not issue verbal or written citations for those who do not comply with the mask mandate.

Some officials cited a lack of staffing, while others argued the language of the executive order either made it difficult to police or infringed on constitutional rights.

“A week ago they were carrying signs that said F the police, and demanding police be defunded. They were ignoring the Denton curfew order and blocked city streets. Now those same people are mad at me for refusing to enforce the mask mandate issued by the Governor. Their hypocrisy is mind-blowing,” Murphree wrote in a lengthy Facebook post on Friday explaining his frustration.

He said the order is not a law and its language has “no requirement that any police officer enforce it, and it’s unenforceable.”

“We can’t spend our time running from place to place for calls about mask we can really do nothing about,” the sheriff continued. “Like I said I will comply because I want to comply. I won’t and I don’t believe I can take any enforcement action on this order. I do believe I have sworn to uphold the constitution and I will do so.”

Houston Police Officers' Union President Joe Gamaldi said on Twitter that “While we in law enforcement are desperately trying to build trust w/our community and are spread incredibly thin with the huge rise in violent crime, we are now [expected] to enforce yet another draconian mask law.

“Everyone needs to wear a mask, but don’t put us in this position,” he said.

The Upshur County Sheriff's Office and the Gillespie County Sheriff's Office both have said they will not be enforcing the governor’s executive order and will not require deputies to wear masks on duty.

“In light of recent allegations in the nation of misconduct on the part of law enforcement, the Sheriff will not restrict the deputy’s ability to clearly communicate intentions when in contact with citizens,” the Gillespie County Sheriff's Office wrote on Facebook. “The Sheriff’s Office will not prohibit a deputy from wearing a face mask if they so choose."

Nacogdoches County Sheriff Jason Bridges said on Facebook Live that his deputies would not be enforcing the mask mandate or limit on gatherings because Abbott's recent initiatives are "borderline infringing on those Constitutional rights."

Kerr County Sheriff Rusty Hierholzer said officers will be required to wear masks but will not issue citations to members of the public who leave the house without a face covering.

“Don’t get me wrong. I believe this virus is real and I believe face masks can help stop the spread,” Hierholzer told the Hill Country Community Journal. “My officers will be wearing face masks. We will try to educate the public on the importance of wearing them, but if Governor Abbott wants citations issued, he needs to use state officers to do so. He has more officers at his disposal than I will ever have.”

In a follow-up Facebook post on Sunday, Hierholzer explained that many sheriff departments are refusing to enforce Abbott’s executive order because it states “no law enforcement or other official may DETAIN, arrest or confine,” an individual for not wearing a mask.

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“I along with others have an issue with this because the courts have longed defined the word detain as follows: Detain generally means to prevent from proceeding; to restrict freedom of movement. In criminal law, detain means to hold a person in custody, often for purposes of questioning,” he said. “How can we stop and talk to or write a citation or even give a verbal warning, WITHOUT detaining.”

The Montgomery County Sheriff’s Office said in a press release Friday it will take “NO action” to enforce the governor’s executive order because of its “specific language prohibiting law enforcement from detaining, arresting or confining to jail."

“This language strips law enforcement of the necessary tools to enforce compliance with the law,” and “could subject our agency, and Montgomery County as a whole, to civil liability,” the press release said.

Citing a lack of staff to track warnings and citations, the Panola County Texas Sheriff's Office said on Monday that though it “strongly” recommends wearing masks in public, compliance with the executive order will be “voluntary.”

Abbott on Monday criticized local leaders for failing to enforce the mask order that he said was issued based on the advice of doctors to help prevent the spread of the coronavirus.

“All of those local officials who are asking Texas to shut back down — they've absolutely refused to enforce the current executive orders that are already in place," he told KFDM.  "What they need to show is action, not absenteeism. They need to show up, enforce the law as it is, before they're given any further authority. They ask for more and more, but they do absolutely nothing."

The Gregg County Sheriff’s Office by contrast said it will enforce the mask order but “will start with education and requesting voluntary compliance.”

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“If Gregg Country Sheriff's Office Deputies encounter an individual that refuses to voluntarily comply, verbal warnings and or written warnings will follow. As a very last resort a citation can be written at the discretion of the deputy,” the agency said on Facebook, also noting that “if a business refuses you service for not wearing a mask they have the right to do so.”