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Urgent Updates
What action is the legislature taking with regard to city and
state disaster authority during a pandemic?
A House State Affairs Committee hearing on H.B. 3, which adds
a new Texas Government Code chapter titled “Pandemic Emergency Management,”
is set for Thursday, March 11, at 8:00 a.m. The 19-page bill affects
mayoral and city council authority during a pandemic. Interested city
officials can register to testify
in person or electronically submit written
comments to the committee. A summary of the bill is available
on page 128 of this document.
What’s the latest regarding future stimulus legislation?
The Senate passed its version of the coronavirus relief
package – H.R. 1319, the American Rescue Plan Act of 2021 – last
weekend, after the House passed its package last week. The
non-city-related provisions in the bill are too numerous to mention here, but
the House Budget Committee has prepared a talking points sheet about the bill. City officials
should be interested to know that, after some ups-and-downs, full funding for
cities was restored in the Senate’s final package. (The Senate’s initial
draft cut funding to cities by $5 billion.) An 11-page Speaker of the House fact sheet has more details on the
legislation, including a description of the local government funding on page
eight.
The bill now heads back to the House, where it will likely
pass without amendments. The final step will be the President’s signature,
which is expected later this week.
We’ve heard some saying a city can’t require pandemic
mitigation measures on city property, in city facilities, or by city
employees. Is that true?
No. Executive order GA-34 expressly authorizes a city to
require masks, social distancing, and other appropriate pandemic mitigation
measures. A spokesperson for the governor confirmed city authority in The Texas Tribune article: “In an email, Abbott
spokesperson Renae Eze confirmed that cities are allowed to take this measure
‘just like private companies can with their property.’”
As we explained last week, Executive Order GA-34 supersedes
certain city regulatory authority (e.g., the authority to require city
residents or businesses to adhere to pandemic mitigation measures, such as
business closures, occupancy limits, or mask mandates). However, as with
previous orders, GA-34 provides that “Nothing in this executive order
precludes businesses or other establishments from requiring employees or
customers to follow additional hygiene measures, including the wearing of a
face covering.”
Merriam-Webster defines “establishment” as “a public or
private institution.” A city is clearly a public institution, meaning it
retains control over and may require pandemic mitigation measures on its
property, in its facilities, and by its employees. Of course, GA-34 prohibits
confinement in jail as a penalty, so the appropriate remedy for a citizen who
violates such a requirement may be to escort them off the premises. For
employees, the remedy may be disciplinary action.
In addition to the city authority discussed above, the Tribune
reported that “a federal government order still in place allows fines
of $250 for the first offense and up to $1,500 for repeat offenders who don’t
mask up in airports, passenger rail and bus systems that fall under federal
regulation.”
What is the status of the suspended Open Meetings Act
provisions?
On March 6, the governor’s office once again, by continuing his COVID-19 disaster declaration for another 30
days, extended the Open Meetings Act suspensions for another 30 days. His
office tells League staff that he should continue doing so for the
foreseeable future. (Even if he decides to independently end the suspensions,
his staff assures the League that he will give ample notice of that action.)
Has the attorney general issued another pandemic-related
opinion?
Yes. A state legislator asked the attorney general about
the application of the Texas Religious Freedom Restoration Act to an
individual’s access to clergy due to the COVID-19 pandemic. The opinion concludes that:
“Both state and federal law provide broad constitutional
protections for religious freedom. The First Amendment of the U.S.
Constitution provides: ‘Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof . . . .’
Article I, section 6 of the Texas Constitution provides: ‘No human authority
ought, in any case whatever, to control or interfere with the rights of
conscience in matters of religion . . . .’ Furthermore, under the Texas
Religious Freedom Restoration Act, a government agency is prohibited from
placing a substantial burden on a person’s free exercise of religion unless
the agency shows that the application of the burden is the least restrictive
means of furthering a compelling governmental interest.
If an individual desires to see a member of the clergy as part
of his or her religious exercise, prohibiting access to that member except
when death is imminent places a substantial burden on the individual’s
religious exercise.
Stemming the spread of COVID-19 is unquestionably a compelling
government interest. However, to the extent that other less restrictive
safety protocols further the government’s interest in stemming the spread of
COVID-19, a court would likely conclude that prohibiting an individual’s
access to clergy only when facing death violates the state and federal
constitutions and the Texas Religious Freedom Restoration Act because it is
not the least restrictive means of achieving such compelling interest.”
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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