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Aug 20

August 20, 2020 TML Coronavirus Update #107

Posted on August 20, 2020 at 3:52 PM by TML Staff

Urgent Updates


Will there be an Update tomorrow?


We sure hope not. As always though, we’ll report on anything of immediate importance.


What’s the deal with outdoor gatherings conducted by colleges and universities?


You thought golf courses were bad? Get a load of the complex analysis needed for higher education outdoor events. (That sounds like a “Big Bang Theory” episodic title: “The Higher Ed Outdoor Events Complexity.”)


What’s the bottom line (so you can just read the next sentence and stop here)? Neither a mayor nor a city council has the authority to regulate outdoor gatherings of any type of any college or university, public or private, except maybe at a private college that is not affiliated with any particular religion. (By the way, private non-religious colleges are hard to come by in Texas.) Let’s break it down.


We start with the governor’s unnumbered proclamation of July 2, 2020, which amends Executive Order GA-28 and governs mayoral authority over outdoor gatherings in general. (This is the one he approved heading into the Fourth of July weekend, and it is still in effect.) It provides in relevant part that:


“For any outdoor gathering in excess of 10 people, other than those set forth above in paragraph numbers 1, 2, or 4, the gathering is prohibited unless the mayor of the city in which the gathering is held, or the county judge in the case of a gathering in an unincorporated area, approves of the gathering, and such approval can be made subject to certain conditions or restrictions not inconsistent with this executive order.”


The exemptions in GA-28’s paragraph numbers 1, 2, or 4 are many. Pursuant to GA-28 #1, a mayor has no express authority over the following outdoor gatherings:


1. religious services, including those conducted in churches, congregations, and houses of worship (see GA-28 #1.b.);

2. professional, collegiate*, or similar sporting events, which can operate at a maximum of 50 percent of the normal operating limits as determined by the owner (see GA-28 #2.a.); and

3. local government operations, including county and municipal governmental operations relating to licensing (including marriage licenses), permitting, recordation, and document-filing services, as determined by the local government (see GA-28 #1.c.).


In other words, the above outdoor events can take place by right with no occupancy limits. How does the above specifically relate to outdoor events conducted by a community college, college, or university?


-Community Colleges: “Junior college districts,” which is the antiquated statutory name for these institutions, “are political subdivisions of the State of Texas.” Op. Tex. Att’y Gen. No. M-707 (1970) at 3; LO-97-076 (1997). For purposes of this analysis, we will assume that “political subdivision” is synonymous with “local government.” See Tex. Education Code  §§ 130.011; 130.002 (Public junior colleges “serv[e] their local taxing districts” and “[a]ll authority not vested [in the state] is reserved and retained locally in each of the respective public junior college districts or in the governing boards of such junior colleges…”). These would probably also include a Texas State Technical College campus.


Executive Order GA-28 provides that “local government operations [may take place] as determined by the local government…with no occupancy limits.” As such, a mayor probably has no authority over an outdoor gathering conducted by a community college.


-State Colleges and Universities: These entities are arguably “state agencies.” Whitehead v. Univ. of Tex. Health Science Center at San Antonio, 854 S.W.2d 175, 180 (Tex. App. - San Antonio 1993, no writ) (“A state agency, as an arm of the state, is shielded by the sovereign immunity available to the state government.”); Nat’l Sports & Spirit, Inc. v. Univ. of N. Tex., 117 S.W.3d 76, 81 (Tex. App. - Fort Worth 2003, no pet.) (“As an agency of the State, UNT enjoys the protection afforded by this sovereign immunity, except in instances where immunity has been expressly waived by statute.”); Op. Tex. Att’y Gen. No. C-690 (1966) (University of Houston, a state agency, not required to secure municipal building permit).


On March 25, the Texas attorney general issued a letter providing that: (1) state agencies and their contractors are not subject to local declarations; and (2) the governor’s orders are superior to cities and counties. He expressly stated that “political subdivisions may not restrict the ability of any state agency…to provide governmental services.” Thus, a mayor probably has no authority over an outdoor gathering conducted by a public college or university.


-Private Religious Colleges: These entities are probably governed by the Texas attorney general’s letter “To Religious Private Schools in Texas.” While some envisioned the letter as applying to elementary and secondary schools, we have no reason to believe it is so limited. The letter states: “as protected by the First Amendment and Texas law, religious private schools may continue to determine when it is safe for their communities to resume in-person instruction free from any government mandate or interference. Religious private schools therefore need not comply with local public health orders to the contrary.”


Moreover, outdoor gatherings at religious schools frequently begin with a prayer. Because of that, the governor’s and attorney general’s “third revised joint guidance for houses of worship during the COVID-19 crisis” memo states: “when state or local governments issue orders prohibiting people from providing or obtaining certain services, they must ensure that these orders do not violate these constitutional and statutory rights.”


Finally, Executive Order GA-28 expressly states that “religious services” may continue with no occupancy limits (GA-28 #1.b.). Based on the governor’s and attorney general’s positions, a mayor probably has no authority over an outdoor gathering conducted by a private religious college.


We are not saying that the attorney general’s informal letters are binding. To the contrary, we aren’t even acknowledging that they are correct statements of the law. At this time, however, it probably makes sense to defer to them to avoid municipal entanglement in the virus/religious debate.


-Private Non-Religious Colleges: No provision of GA-28 or any other order or proclamation exempts a non-religious private college from the more than 10 person outdoor gathering limit. Thus, this type of college would need to seek mayoral approval for such a gathering. 


A fun drinking game is trying to name one of the 60-plus private colleges in Texas that are NOT affiliated with a religion. That is, only if you DON’T like to drink! (Rice maybe? Which else?)


*The analyses here relates to gatherings that are not collegiate sporting events. As noted above, any college or university sporting event is exempt from city regulation and can operate at a maximum of 50 percent of the normal operating limits as determined by the owner (see GA-28 #2.a.).


Further Updates


What’s the latest with regard to the November election and the use of mail-in ballots?


The Texas Tribune ran an in-depth article today about the challenges elections officials are facing this fall.


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


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