Urgent Updates
Did the governor’s order last Monday (Executive Order GA-18,
April 27) “lift” or “let expire” his “stay home/work home”
order? Can you summarize very briefly what it allows?
No, it did not. And yes, we can! In spite of various media
headlines, Executive Order GA-18 has similar stay home/work home
language as previous orders:
“In accordance with guidance from DSHS Commissioner Dr.
Hellerstedt, and to achieve the goals established by the President to reduce
the spread of COVID-19, every person in Texas shall, except where
necessary to provide or obtain essential services or reopened services, minimize
social gatherings and minimize in-person contact with people who are not in the
same household. People over the age of 65, however, are strongly
encouraged to stay at home as much as possible; to maintain appropriate
distance from any member of the household who has been out of the residence in
the previous 14 days; and, if leaving the home, to implement social distancing
and to practice good hygiene, environmental cleanliness, and sanitation.”
(Emphasis added.) The highlighted language means that
Texans should stay home/work home, unless (while following DSHS/CDC prevention guidelines):
-Accessing essential businesses (as defined by TDEM and the U.S. Department of Homeland Security).
-Starting on May 1, accessing “re-opened services” as listed in
the order.
In addition, the order allows (while following DSHS/CDC prevention guidelines):
-Attending religious services according to attorney general’s guidelines.
-Participating in “essential daily activities,” such as going to
the grocery store or gas station, providing or obtaining other essential or
re-opened services, visiting parks, hunting or fishing, or engaging in physical
activity like jogging, bicycling, or other outdoor sports.
(Editor’s note: The above is meant to be a simplified answer,
which is difficult considering that GA-18 is a complicated order. The April 27 update explains it in more detail.)
What activities does Executive Order GA-18 expressly prohibit?
Executive Order GA-18 provides that:
-People shall avoid visiting bars, gyms, public swimming pools,
interactive amusement venues such as bowling alleys and video arcades, massage
establishments, tattoo studios, piercing studios, or cosmetology salons.
-In accordance with the Guidelines from the President and the
CDC, people shall not visit nursing homes, state supported living centers,
assisted living facilities, or long-term care facilities unless to provide
critical assistance as determined through guidance from the Texas Health and
Human Services Commission (HHSC).
-In accordance with the Guidelines from the President and the
CDC, schools shall remain temporarily closed to in-person classroom attendance
by students and shall not recommence before the end of the 2019-2020 school
year.
In addition, the superseding language in the order provides, in
part, that:
“This executive order shall supersede any conflicting order
issued by local officials in response to the COVID-19 disaster, but only to the
extent that such a local order restricts essential services or reopened services
allowed by this executive order, allows gatherings prohibited by this executive
order, or expands the list of essential services or the list or scope of
reopened services as set forth in this executive order.”
What does that mean? Opinions vary substantially, but it
would seem to indicate that a city’s order may not restrict how a business
classified as essential or expressly re-opened by the order operates any more
than the order (which incorporated DSHS/CDC prevention guidelines)
does. And it would seem to indicate that a city order may not open a
business that is not classified as essential, re-opened, or part of an
essential activity.
(Editor’s note: The above is meant to be a simplified
answer, which is difficult considering that GA-18 is a complicated
order. The April 27 update explains it in more detail.)
Should a city continue its disaster declaration in light of
Executive Order GA-18? What about local disaster orders?
Whether to declare a local state of disaster related to the
virus is up to each mayor in the first instance, with the extension of the
declaration beyond seven days requiring city council approval. Whether to
issue any particular order is a local decision as well.
What about FEMA or other reimbursement? Although the
President and the governor have issued an emergency declaration and a state of
disaster, respectively, state regulations provide that the mayor must have declared
a local state of disaster before a city may request disaster recovery
assistance. 37 TAC §7.41 (“Requests for state or federal recovery assistance
must be initiated by local government. The chief elected official of the
jurisdiction must have declared a local State of Disaster before requesting
disaster recovery assistance.”).
Thus, if a city anticipates requesting financial assistance in
response to the COVID-19 pandemic, the safest course is for a mayor to at least
declare a state of local disaster and submit it to the governor, via the Texas
Division of Emergency Management by email at soc@tdem.texas.gov
or fax at 512-424-5587.
In light of Executive Order GA-18, some cities have decided to
stop issuing separate, complex local orders and ordinances. Instead, they
will reference the governor’s current order and provide for enforcement (in
addition to the Class B misdemeanor penalties in the Texas Disaster Act)
through a Class C misdemeanor. We must stress that, because of the lack of
clarity in GA-18’s superseding/preemption language, no action should be taken
without consulting with local legal counsel.
Here’s a possible example of a city’s ordinance language that
simply incorporates – and allows for enforcement of, a governor’s order:
“That effective immediately, and continuing through May 15,
2020, the City hereby adopts the provisions of Executive Orders GA-18 and GA-19
issued by Governor Greg Abbott on April 27, 2020. The provisions of GA-18
and GA-19 are incorporated herein by reference as if written word for
word. For clarity, nothing in the ordinance is intended to impact the
provisions related to the continuation of the local state of disaster as
specified in Ordinance No. _______.
Any person, firm, corporation, agent, or employee thereof who
violates any of the provisions of this ordinance commits an offense that is
considered a class C misdemeanor and each day the violation continues shall be
a separate offense punishable by a fine of not more than $500. A culpable
mental state is not required for the commission of an offense under this
ordinance and need not be proved. The penalty provided for in this
ordinance is in addition to any other remedies that the City may have under
City ordinances and state law.”
Again, some mayors and city councils may wish to do more or
less, and we defer absolutely to their choice.
What is the status of the suspended Open Meetings Act
provisions?
On March 16, the governor granted the office of the attorney general’s request for
suspension of certain open meeting statutes. The temporary suspension allows,
among other things, for telephonic or videoconference meetings of governmental
bodies that are accessible to the public in an effort to reduce in-person
meetings that assemble large groups of people. The guidance associated with the suspension provides that:
“These suspensions are in effect until terminated by the office
of the governor, or until the March 13, 2020, disaster declaration is lifted or expires.”
The March 13 disaster declaration was extended for another 30
days by his April 12, 2020, disaster declaration. That means the
relevant open meetings laws remain suspended.
We can’t be certain, but it is highly likely that the governor
will extend his April 12 disaster declaration for another 30 days and probably
continue to do so repeatedly. So long as he does, the relevant open
meetings laws remain suspended, unless and until he takes express action to
rescind his suspensions. Unless they expressly state otherwise, his orders
have no effect on the suspension.
Further Updates
Can we get our hair cut yet?
According to guidance issued today (April 28) by the Texas
Department of Licensing and Regulation:
“Cosmetology Salons, Nail Salons, Estheticians, Mini-Salons and
Massage Therapy Establishments Remain Closed:
Under Executive Order GA-18 issued by Gov. Greg Abbott on
April 27, all cosmetology salons (including nail salons, estheticians, and
mini-salons), barber shops, and massage establishments shall continue to remain
closed. Executive Order GA-18 overrides all local and county orders.
Whether a salon or shop is a sole proprietorship or not, they
are to remain closed until Executive Order GA-18 is amended or rescinded.”
Of course, that guidance is imprecise in light of the language
in Executive Order GA-18. Nothing in the order mandate that those
businesses be “closed.” The order provides only that people “shall avoid”
them:
“People shall avoid visiting bars, gyms, public swimming pools,
interactive amusement venues such as bowling alleys and video arcades, massage
establishments, tattoo studios, piercing studios, or cosmetology salons.”
Also, that guidance doesn’t necessarily address “retail to go”
or “re-opened” retail services as a component of one of the prohibited
businesses. In other words, if a salon sells beauty products as well, can
that component of the store open in according with occupancy limits and
appropriate prevention measures? It would seem the answer ultimately
depends on local enforcement.