Police across Texas are enforcing social distancing, but they're hesitant to make arrests

Texans who eat out at restaurants or gather at bars are violating an emergency order from the governor, but law enforcement agencies across the state say they’ll be measured in how they'll enforce the decree to practice social distancing.

Punitive action — like fines or jail time — is an option, the agencies say, but also a last resort.

Abbott's order, which also says Texans shouldn't gather in groups of more than 10 people, is designed to halt the spread of the new coronavirus, which state numbers say has infected hundreds of Texans and killed eight people in the state. Some local governments, including Dallas County and the city of Waco, have rolled out even stricter shelter-in-place orders. Hidalgo County began a nighttime curfew, with exceptions.

Local authorities and Abbott have said that, so far, they’ve encountered overwhelming, voluntary compliance. But if people don’t obey the orders, Abbott warned Sunday, they could face fines up to $1,000 and six months in jail. John Wittman, a spokesperson for the governor, said that both local law enforcement and the Texas Department of Public Safety can enforce the state order. Businesses that don’t comply, like restaurants that keep their dining rooms open, will have their licenses pulled, he said.

On the ground, however, numerous law enforcement agencies seem hesitant to take criminal action against people who violate the orders. McAllen Police Chief Victor Rodriguez, whose department is now authorized to enforce Hidalgo County's 10 p.m. to 5 a.m. curfew, said police still can't pull anyone off the street and lock them up.

"Police officers are still required to meet the constitutional requisite of probable cause … to believe that an offense has happened," he said.

Law enforcement officers, code ordinance enforcers or a combination of the two are handling any potential violations in multiple cities and counties. So far most enforcement action seems targeted toward businesses. And a lot of that action is in the form of education, officials say.

In Austin, the city has received more than 300 calls regarding large gatherings or open restaurants or bars since March 15, according to a city spokesperson. City code compliance officers respond to the scene and inform businesses and property owners of the current restrictions and may issue warnings. No citations have yet been issued.

“Our goal right now is voluntary compliance. We are responding to calls, offering guidance and have seen overwhelming voluntary compliance,” said José Roig, interim director of the Austin code department.

Harris County constables, who announced Friday that they would respond to reports of unauthorized gatherings at places like restaurants and bars, said they were focusing specifically on businesses, and “the last thing we want to do is enforcement action.”

In Laredo, the police department has formed a COVID-19 task force, with about three dozen personnel, to go out and ensure compliance with the city order. On Friday, officers had visited nearly 500 places, but again, no citations had been issued. The main focus has been on public places, not big house gatherings, according to a police department spokesperson.

“Most people were already steering clear of the public eating areas all by themselves,” said the spokesperson, Jose Baeza. “... It's overall been manageable and cooperative.”

Even in Dallas County, the first jurisdiction to issue a shelter-in-place order, law enforcement appears hesitant to impose any criminal penalties. The order states residents are allowed to leave their homes only for essential activities, like getting food or medicine, or for essential government or business operations.

The Dallas Police Department said Monday it is continuing to play a supportive role to the city code enforcement team, which is handling reports of violations. No citations have been issued. And the sheriff’s office said unless there is probable cause or a credible witness, it “is not specifically going to be identifying who is essential personnel or not.”

The more hands-off approach and push for voluntary compliance for individuals matches what other parts of the country have implemented. Police in San Francisco, which has been under a shelter-in-place order since last Monday, told Time last week that enforcement to keep people inside is a last resort, and voluntary compliance is the goal.

“Officials in most of these places have been careful to say that enforcement against individuals will be very limited,” said Lindsay Wiley, a professor and public health law expert at American University Washington College of Law. “They’re really hoping to avoid a situation where they’re arresting people and putting them in crowded jails.”

Another concern is the constitutionality of shelter-in-place orders, Wiley said. In times of crisis, courts balance civil liberties with public health needs, but long-term restrictions for weeks or potentially months without individual threat assessments could be problematic, she said.