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Mar 09

March 9, 2021 TML Coronavirus Update #176

Posted on March 9, 2021 at 1:22 PM by TML Staff

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.