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Urgent Updates
Are there new areas in the state where business reopening
capacity is limited?
Yes. Executive order GA-32 was issued by the governor back on October 7, 2020.
A key feature of GA-32 is the ability of most facilities (not including bars,
which are subject to additional restrictions) to reopen at 75% capacity,
unless they are located in a Trauma Service Area with high COVID-19 hospitalizations.
An “area with high hospitalizations” is defined as “any Trauma Service Area
that has had seven consecutive days in which the number of COVID- 19
hospitalized patients as a percentage of total hospital capacity exceeds 15
percent, until such time as the Trauma Service Area has seven consecutive
days in which the number of COVID- 19 hospitalized patients as a percentage
of total hospital capacity is 15 percent or less.” Hospitalization data
by Trauma Service Area can be found here.
Yesterday (October 26), the Texas Department of State Health
Services (DSHS) updated their GA-32 webpage with two new Trauma Service Areas that are
now considered to be high COVID-19 hospitalization areas – Trauma Service
Area A (25 counties in Amarillo region) and Trauma Service Area B (22
counties in Lubbock region). These two regions joined the three El
Paso-region counties making up Trauma Service Area I as the three regions of
the state where re-openings are limited to 50 percent under GA-32.
The county judge of a county located within a larger
high-hospitalization Trauma Service Area may follow an attestation process
with DSHS to continue to operate at 75% capacity for certain businesses if
there have been fewer than 30 confirmed cases of COVID-19 over the previous
14 days within the county. The affected counties that have submitted an
attestation and qualified to continue operating at 75% capacity are listed on
the GA-32 webpage linked above.
What’s the status of utility disconnections for
municipally-owned utilities (MOU)?
An MOU has always been able to disconnect its customers for
non-payment, even during the pandemic. However, many cities have chosen not
to disconnect their customers in line with guidance from the Public Utility
Commission (PUC).
The PUC issued orders in April 2020 that suspended
disconnections, but those orders did not apply to MOUs. The PUC did urge MOUs
to “review the Commission’s order on the direction given to [investor-owned
utilities] when making their own decision regarding disconnections for
nonpayment during the COVID19 crisis” in a Q&A on its website. The last PUC order suspending disconnections expired on
June 13, 2020.
Do cities have options to assist with unpaid utility bills?
If a city received funding through the Coronavirus Relief Fund
(CRF) under the federal CARES Act, it may be able to set up a grant program
for individuals enduring an economic hardship to continue receiving essential
services. The U.S. Department of Treasury Guidance allows a city to use
CRF revenue on grant funding to assist certain individuals with their utility
bills:
“27. May Fund payments be used to replace foregone utility
fees? If not, can Fund payments be used as a direct subsidy payment to all
utility account holders?
Fund payments may not be used for government revenue replacement,
including the replacement of unpaid utility fees. Fund payments may be used
for subsidy payments to electricity account holders to the extent that the
subsidy payments are deemed by the recipient to be necessary expenditures
incurred due to the COVID-19 public health emergency and meet the other
criteria of section 601(d) of the Social Security Act outlined in the
Guidance. For example, if determined to be a necessary expenditure, a
government could provide grants to individuals facing economic hardship to
allow them to pay their utility fees and thereby continue to receive
essential services.”
Similar guidance can be found in the Texas Division on
Emergency Management’s CRF FAQ.
Still, the Texas Constitution prohibits a city from giving a
gratuitous donation or gift. TEX. CONST. arts. III, § 52(a); XI, § 3. A
city can use public funds to make a donation under limited circumstances. The
Texas Supreme Court has held that “[a] political subdivision’s paying public
money is not ‘gratuitous’ if the political subdivision receives return
consideration.” Texas Mun. League Intergovernmental Risk Pool v. Tex.
Worker’s Comp. Comm’n, 74 S.W.3d 377, 383 (Tex. 2002). Before making a
gift or donation to a private entity, the city council should determine that:
(1) the conveyance will serve a predominantly public purpose of the city; (2)
the city will retain sufficient control to ensure the public purpose is
carried out; and (3) the city will receive return benefit. Id.
A city considering setting up a grant program to assist with
unpaid utility bills should consult with its local legal counsel.
Further Updates
Where can I find archived issues of the TML Coronavirus
Updates?
TML Coronavirus Updates are archived by date here and by subject here.
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