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Aug 17

August 17, 2020 TML Coronavirus Update #105

Posted on August 17, 2020 at 4:18 PM by TML Staff

Urgent Updates


What’s the latest from the governor on the virus in Texas?


According to The Texas Tribune, Governor Abbott says said bars could potentially reopen once coronavirus metrics improve significantly. He said reopening would require the state’s positivity rate to drop below 10 percent for a sustained period of time and for hospitalizations to decrease.


We reported in a recent update that the state’s positivity rate was as high as 25 percent for the week ending August 11. However, according to KXAN News (reporting Department of State Health Services data), the current rate is much lower at just over 11 percent. The following chart shows how erratic the rate has been in recent weeks.

Abbott alleged that fewer people getting tested and a drop in July surge testing operations in various coronavirus hotspots contributed to the former high rate.


The governor also applauded Big 12 Conference officials’ decision to allow college football this fall.


What’s the latest with school openings, and how does it relate to cities?


The school re-opening debate is, apparently, a gift that keeps on giving. Last Friday (August 14), the Cy-Fair American Federation of Teachers sued the Cypress-Fairbanks Independent School District. The teacher’s union alleged that the district is in violation of a joint order issued by the Harris County/City of Houston health authorities prohibiting in-person instruction/professional development until September. 


The trial court granted the union’s request for a temporary restraining order the same day the lawsuit was filed. The judge’s order stated that, no matter what the district says, the joint local health authority order means teachers can’t be made to attend in-person professional development before September 7.


Why should city officials care? The underlying issue in the lawsuit is whether a city’s or county’s health authority can shut down a school district based on local metrics and local health and safety authority. 


So far as we understood (or thought we understood) it, the governor’s and TEA’s position remains that: (1) school boards control when school opens; (2) school boards should consult with the local health authority to make the decision; and (3) neither a city, a county, nor a local health authority can issue blanket school closure orders. According to them, the only authority at all lies with a local health authority, who can “during the course of the school year, determine that a school building must be closed in response to an outbreak.”


The attorney general, who really likes writing letters, wrote yet another one today (August 17) in the form of an amicus (“friend of the court”) letter to the trial judge. We assumed his letter would state that the local orders are preempted by the governor’s order, statements, and TEA actions. He didn’t. 


He argues that the Health and Safety Code provisions relied on by the city and county don’t authorize a blanket closure. Why he left out executive order preemption is anyone’s guess. Perhaps he doesn’t think those suspensions would hold up in court? 


“Teachers’ unions have no authority to override the decisions of schools administrators about how to return to school safely,” said the attorney general.  That’s a mischaracterization of the dispute. The union isn’t suggesting that “it” should determine how to return to school safety. Through its lawsuit, rather, the union is suggesting that doctors should. 


The whole thing has folks confused. Seems like listening to two doctors might be better than one attorney? (Let the jokes commence: Two doctors and an attorney walk into a bar…) 


In any case, we’ll let the courts sort it out and go from there.


Further Updates


What’s the latest for municipal courts regarding the suspension of the offense of expired vehicle registration?


Way back on March 16, 2020, the governor suspended various sections of the Transportation Code. The suspension includes the offense of driving with an expired inspection sticker, among others. That made good sense to avoid crowding at Texas Department of Motor Vehicle offices and courts.


An inquiry to the League’s legal hotline last week uncovered an interesting quirk: Any citation issued for expired registration after March 16 should be dismissed as invalid. That’s true even if the registration had been expired for decades!  Moreover, the executive order could be interpreted as prohibiting law enforcement officers from issuing a citation at all.


We base that conclusion on a DMV open letter explaining the suspensions. Law enforcement officers are probably aware of this through DMV communications, but this particular scenario may be a new one for court staff.


Where can I find archived issues of the TML Coronavirus Updates?


TML Coronavirus Updates are archived by date here and by subject here.