Urgent Updates
We’ve seen some cities issue orders that are either more
restrictive or less restrictive than the governor’s orders. For example,
some cities may wish to add a business to the list of essential services, while
other cities may wish to expand the availability of all services, with certain
restrictions. Can they do that?
As reported in previous updates, opinions vary. Because of
that, the League’s attorneys will – as always – defer to each city attorney’s
advice to their client. Yesterday’s (April 20) update stated that “a city
may not define essential services differently than TDEM and the U.S. Department
of Homeland Security.”
Some city attorneys disagree with that black-and-white
statement. Their position is that, by carefully parsing the preemptive language
in GA-16, a city can – as a legal proposition – add to the TDEM/CISA list of
essential services locally. That opinion is based on the following
language:
“This executive order shall supersede 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 or reopened
services allowed by this executive order or allows gatherings prohibited by
this executive order. I hereby suspend Sections 418.1015(b) and 418.108 of
the Texas Government Code, Chapter 81, Subchapter E of the Texas Health and
Safety Code, and any other relevant statutes, 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.”
(Emphasis added.) In other words, the city attorneys argue
that allowing a local business that is not on the TDEM/CISA list to re-open is
not “restricting” essential services. Rather, it is expanding essential
services.
Of course, the order states that the statutes listed in it are
suspended “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.”
(Emphasis added.) That language is difficult to
decipher. If local action is “consistent” with the order, but it can’t be
“inconsistent,” where does that leave cities? At a press conference this
afternoon (April 21), the governor was asked about an order issued by the mayor of the City of Colleyville, and
whether it was congruent with his order. The Colleyville order allows, for
example: (1) retail services that are not “essential services” to open and make
sales through in-person appointments, so long as distancing is followed; (2)
gyms, massage establishments, and salons to re-open for one-on-one appointments
only, with appropriate precautions; and (3) restaurants with patios can allow
outside dining, so long as distancing is followed.
In response to the question, the governor said that:
“I had the chance to read his [the mayor’s]
proclamation. From everything that I can tell, what he wrote in the
proclamation he made deference to my executive order, and was trying to write
policies in a way that would parallel or be in agreement with my order. To
the extent that there may be a strategy that he thinks is consistent with my
order, my staff will talk to him and see what’s in agreement. If there’s
something not in agreement, we will be happy to talk to him about it.”
The governor also mentioned that his Strike Force is reviewing
which types of businesses can safely reopen and will have recommendations in a
few days, which will lead to a new order on April 27. (Order GA-17 states
that those recommendations should be made in time for the governor to issue a
new order relating to business openings by May 30.)
What’s the bottom line? We are witnessing a
rapidly-changing landscape with differing legal and political
opinions. While we try to provide the basic information you need, these
updates are not meant to be legal advice to any particular city. That’s
why city officials should always base their ultimate decisions on the advice of
their local legal counsel. That counsel is in a unique position to
understand the goals of their city officials, explain the local costs and
benefits of a particular course of action, and advise based on that and more
local information.
City attorneys should contact Scott Houston, TML general
counsel, at 512-231-7464 or gencounsel@tml.org
with questions or comments.
Will future stimulus legislation provide money for cities?
Despite intense lobbying from TML, the National League of
Cities, and individual cities, the next round of stimulus legislation
(sometimes referred to as “stimulus 3.5”) will be for around $484 billion in
private relief, including $310 billion for the Small Business Administration's
Paycheck Protection Program, $60 billion for small banks, credit unions, and
similar financial institutions, $75 billion for hospitals, and $25 billion for
testing.
One bit of good news is that stimulus 3.5 will likely include a
provision allowing cities, counties, and states to use the $150 billion
allocated to states, and to cities and counties over 500,000 population, in the
earlier $2 trillion CARES Act to offset some of the lost revenue in their
budgets. How smaller cities can access any of those funds remains unclear
at the state level.
Many reports indicate that money for all cities might be
available in a future package, and the President tweeted the
following: “to State/Local Governments for lost revenues from COVID 19,
much needed Infrastructure Investments for Bridges, Tunnels, Broadband, Tax
Incentives for Restaurants, Entertainment, Sports, and Payroll Tax Cuts to
increase Economic Growth.”
The seven leading organizations representing state and local
governments at the federal level called on Congress in a press release to “immediately provide robust, flexible
relief” to state and local governments as part an interim relief package for
the COVID-19 pandemic.
Has the state issued additional guidance on houses of religious
worship?
Yes, the governor and attorney general issued updated joint guidance regarding the effect of Order GA-16
on religious services conducted by congregations and houses of
worship. According to an attorney general’s press release:
“It recommends strategies for houses of worship to effectively
slow the spread of the Coronavirus (COVID-19) while serving their respective
communities of faith.
‘Government and faith communities throughout Texas must work
together to care for our neighbors and slow the spread of COVID-19,’ said
Attorney General Paxton. ‘This updated guidance provides clear direction
for houses of worship to protect the health and safety of their congregations
as they continue to hold religious services, exercise religious
liberty and serve their faith communities.’
All emergency orders must comply with the First Amendment of the
United States Constitution, Article I of the Texas Constitution, and the Texas
Religious Freedom Restoration Act, which protect the rights of Texans to freely
exercise their religion. Consistent with those protections, Executive
Order GA-16 defines essential services to include ‘religious services
conducted in churches, congregations, and houses of worship.’ Orders given by
state or local governments, therefore, may not prohibit people from
providing or obtaining those religious services. And importantly,
under GA-16, local government may not close houses of worship.”
Further Updates
Are there any university programs open to small, rural cities to
help rebuild local economies?
Yes. The IC2 Institute is a “think-and-do-tank” at The
University of Texas at Austin. IC2 formed the Regional Economic Recovery Team
to help small, rural cities develop economic recovery plans. This work will
begin this summer and continue throughout the year. To learn more about the
institute and the recovery team, visit the IC2 Institute website. If you are interested in
getting more information about how your city can participate in the program,
email info@ic2.utexas.edu.
Where can I find archived issues of the TML Coronavirus Updates?
TML Coronavirus Updates are archived by date here and by subject here.