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Urgent Updates
Has the governor issued a new executive order that
supersedes his previous social distancing order?
Yes. Today the governor issued a new executive order
that supersedes his original social distancing order (GA-08). The new
order extends through April 30, 2020. Also, he has closed all Texas schools
through May 4, 2020, and that date may be extended.
Each city official should read the entire order (linked
above), but in summary the order provides that:
-Every person in Texas shall, except where necessary to
provide or obtain essential services, minimize social gathering and
minimize in-person contact with people who are not in the same household.
-Essential services are those defined by TDEM
according to the U.S. Department of Homeland
Security.
-All Texans should follow the President’s and CDC’s hygiene
guidelines.
-All Texans should avoid eating out, but take advantage of
carry out and drive-thru restaurants.
-It does not prohibit people from accessing essential
services or engaging in essential daily activities, such as going to the
grocery store or gas station, providing or obtaining other essential services,
visiting parks, hunting or fishing, or engaging in physical activity like
jogging or bicycling, so long as the necessary precautions are maintained
to reduce the transmission of COVID- 19 and to minimize in-person contact
with people who are not in the same household.
-Texans should stay away from nursing homes and similar
facilities.
-Schools shall remain temporarily closed to in-person
classroom attendance and shall not recommence before May 4, 2020.
Does the governor’s new order supersede local (e.g., city
and county) orders?
Yes, at least partially. It clearly supersedes “any
conflicting order issued by local officials in response to the COVD-19
disaster, but only to the extent that such a local order restricts
essential services allowed by this executive order or allows gatherings
prohibited by this executive order.” That means a city may not define
essential services differently than TDEM and the U.S. Department of Homeland
Security have, but even their guidance leaves unanswered
questions. It appears that the most significant preemptive effect of
the new order is to allow religious gatherings conducted in churches,
congregations, and houses of worship, so long as appropriate social
distancing guidelines are followed.
The governor then suspended Section 418.108 of the Texas
Government Code (The Texas Disaster Act) and several other laws,
some of which are unnamed, “to the extent necessary to ensure that local
officials do not impose restrictions inconsistent with this executive
order, provided that local officials may enforce this executive order as
well as local restrictions that are consistent with this executive order.”
Section 418.108 is the core authority for mayors to declare, and city
councils to extend, local states of disaster, including movement of persons
and occupation of premises. This suspension would appear to mean
that a city’s stay home/work home order is superseded by the order’s edict
that “every person in Texas shall, except where necessary to provide or
obtain essential services, minimize social gathering and minimize in-person
contact with people who are not in the same household.”
League staff will continue to analyze the order and report
further in tomorrow’s update.
Where do we stand right now with regard to federal and state
guidance and orders, including the new order in the question above?
The federal government has not “ordered” anything. Instead,
President Trump and the Center for Disease Control issued the following guidance, which is
in effect through April 30: (1) listen to and follow the direction of your
state and local health authorities; (2) if you feel sick, stay home; (3) if
someone in your household has tested positive for coronavirus, keep the
entire household at home; (4) if you are an older person, stay home and
away from other people; (5) if you are a person with a serious underlying
health condition putting you at risk, stay home and away from other people;
(6) work or engage in schooling from home whenever possible; (7) if you
work in a critical infrastructure
industry, you have a special responsibility to continue to go to work; (8)
avoid social gatherings in groups of more than 10 people; (9) avoid eating
and drinking at bars, restaurants, and food courts—use drive thrus, pick
up, or delivery options; (10) avoid discretionary travel, shopping trips,
and social visits; (11) do not visit nursing homes or retirement or
long-term care facilities unless to provide critical assistance; and (12)
practice good hygiene.
With regard to state-level orders, Governor Abbott has today
ordered compliance
with the items in the bulleted list in the first question above.
Because the federal government has issued only guidance, the
only non-local (e.g. city or county) mandatory restrictions are those
imposed by Governor Abbott’s new order.
What action has the governor taken with respect to first
responders and testing?
Yesterday, the governor issued the following press release:
Governor Greg Abbott has waived certain statutory provisions
to ensure public safety employees who contract COVID-19 during the course
of their employment will be reimbursed for reasonable medical expenses
related to their treatment of COVID-19. Because the nature of their
duties has caused them to increase their risk of contracting COVID-19, the
Governor has waived these statutory provisions so that public safety
employees who contract COVID-19 are not also financially penalized.
“Texas’ public safety employees are vital to our COVID-19
response,” said Governor Abbott. “These brave men and women are on the
front lines and risking potential exposure to keep our communities safe. By
waiving these regulations, Texas will ensure that those who may contract
COVID-19 will have the support they need to pay for medical expenses.”
While the actual order is not posted on the governor’s
website, League staff obtained this language from his office:
In accordance with section 418.016 of the Texas Government
Code, the Office of the Governor grants DWC’s request to suspend Texas
Government Code 607.002(1) and (2) to the extent necessary to allow those
public safety employees, who were likely to have been exposed to COVID-19
while in the course of their employment, to be entitled to the
reimbursements set forth in 607.002 of the Government Code.
Those subsections provide that:
Sec. 607.002. REIMBURSEMENT. A public safety
employee who is exposed to a contagious disease is entitled to
reimbursement from the employing governmental entity for reasonable medical
expenses incurred in treatment for the prevention of the disease if:
(1) the disease is not an "ordinary disease of
life" as that term is used in the context of a workers' compensation
claim;
(2) the exposure to the disease occurs during the
course of the employment; and
(3) the employee requires preventative medical
treatment because of exposure to the disease.
The apparent intent of the order is to remove any
impediments to a city providing and paying for testing for its first
responders.
Further Updates
Has the Texas Municipal League Intergovernmental Risk Pool
provided COVID-19-specific training for its members?
Yes. TMLIRP’s online learning partner, LocalGovU, is
offering timely online learning classes that cover COVID-19, including
COVID-19 for Law Enforcement and COVID-19 for Local Government Personnel.
These courses are no cost to TMLIRP members.
If your entity has established a TMLIRP online learning
center account, the entity’s administrator can assign these courses to
employees. LocalGovU has how-to videos on system functions in the
online learning center.
If you do not have an account already established for your
entity, please go to TMLIRP’s online learning page to request access to the
training platform. An entity should assign a training administrator to
serve as the contact for the online learning center. Requests for training
access will be granted once your account has been verified, usually within
24 to 48 hours. A LocalGovU Customer Success representative will reach out
to connect once your account has been verified.
Link to TMLIRP online learning page: http://bit.ly/TMLIRPOnlineLearning
Texas Municipal League Intergovernmental Risk Pool
Loss Prevention Department
1821 Rutherford Lane, First Floor
Austin, TX 78754
512-491-2300
800-537-6655 (in Texas only)
lossprevention@tmlirp.org
Do cities under 500,000 population have direct access to the
$139 billion Coronavirus Relief Fund created under the federal CARES Act?
Likely not, but we don’t yet know for sure. Conventional
wisdom has been that the CARES Act only allows state governments, along
with local governments with populations exceeding 500,000 to receive direct
funding from the Coronavirus Relief Fund. (Arguably, the state would provide
additional funding to local governments under 500,000 population through
its allocation.) That guidance is based on this definition of “local
government” in the section of the Act pertaining to the Coronavirus Relief
Fund:
“The term ‘unit of local government’ means a county,
municipality, town, township, village parish, borough, or other unit of
general government below the state level with a population that exceeds
500,000.”
The National League of Cities has raised an alternative
interpretation in a letter to the U.S.
Department of Treasury premised on a doctrine of statutory interpretation
called the “rule of the last antecedent.” Essentially what NLC contends
under this interpretation is that the 500,000 population requirement
applies only to an “other unit of general government below the state level”
and not to a “county, municipality, town, township, village, parish, [or]
borough.”
NLC has requested interpretive advice from the Department of
Treasury on this question, and TML will provide updates on any such
guidance as it become available.
Is a state government permitted to grant revenue received by
the state from the Coronavirus Relief Fund to local governments under
500,000 population?
If local governments under 500,000 population cannot receive
direct access to federal funds under the CARES Act, a reasonable interpretation
of the new law would likely permit a state government to use revenues it
receives under the Coronavirus Relief Fund to further fund these local
governments. However, one possible interpretation of the Coronavirus Relief
Fund language in the CARES Act indicates that funding received by the state
may only be used to cover expenditures made by the state.
In the same letter linked in the question above, the
National League of Cities has sought interpretive advice from the
Department of Treasury on this language. NLC argues in its letter why the
Congress likely did not intend to deny funding to local governments under a
certain population threshold, as residents of those communities are equally
as susceptible to the coronavirus as residents of large urban areas.
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