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May 05

May 5, 2020 TML Coronavirus Update #37

Posted on May 5, 2020 at 6:10 PM by TML Staff

Urgent Updates


What can I do as mayor to advocate on behalf of my community to receive federal funds to combat COVID-19?


As we’ve reported in past updates, the federal government allocated $150 billion in federal aid to states and local governments over 500,000 in population.  Money was directly allocated to those cities and counties over 500,000 for the purposes of aiding in COVID-19 related expenses that were not budgeted for and incurred before the end of the year. What about the majority of cities that do not meet that population threshold but have real costs either directly related to fighting COVID-19 or losses in revenue due to distressed economic factors?  


The State of Texas will receive over $8 billion and our understanding is that the governor is working to establish a program for the distribution of a portion of those funds for cities under 500,000.


Please join mayors from across Texas in urging the governor to establish a program to provide funding to cities for combating COVID-19, including the ability to use those funds in the most flexible manner allowed. If you would like to have your name included in this letter to the governor, email JJ Rocha at by Thursday (May 7) at 10:00 a.m.


What “clarifications and modifications” has the governor offered on the executive orders he issued last week?


At a press conference today, the governor announced “clarifications and modifications” regarding the executive orders issued last week. As of distribution of this email, we haven’t yet seen an actual order or written clarification. When we obtain that, we’ll report further. The governor stated at his press conference that:


-Funerals, memorials, burials, and weddings should be treated the same as church-type gatherings with regard to limited seating arrangements. At-risk populations are strongly encouraged to participate remotely.

-Park-like settings such as beaches, lakes, and rivers (including river-rafting) should follow the same guidelines as required for parks regarding social distancing.

-The 25 percent seating capacity limitation applicable to restaurants applies only to indoor seating, not outdoor seating. However, outdoor seating must comply with distancing standards.


What is the status of barbershops, cosmetologists, nail salons, and tanning salons? Or, can I get a haircut yet?


Almost! The governor announced today that barbershops, cosmetologists, nail salons, and tanning salons may open on Friday (May 8). Any of these services must comply with rules in what the governor referred to as his “policy manual” (presumably, that is the previously-released “Report to Open Texas” document, but we will clarify when we obtain any new orders). The governor stated at his press conference that the following applies:


-One customer per stylist.

-Appointment system only is recommended.

-If allowing walk-ins, customers are allowed to wait inside only if they are keeping six feet of separation.

-Six feet of separation between stations.

-Wearing facemasks is strongly recommended.


What is the status of gyms and exercise facilities?


At today’s press conference, the governor announced that gyms and exercise facilities may open beginning on May 18. The governor stated at his press conference that the following applies:


-Gyms may not operate at more than 25 percent capacity (this doesn’t include outside activity).

-Showers and locker rooms must remain closed.

-Equipment must be disinfected after each use.

-Customers must wear gloves that cover fingers.

-Must maintain six foot social distancing inside the gym.

-If a customer brings equipment, like a yoga mat, the equipment must be disinfected before and after use.


What about manufacturing facilities and office buildings?


The governor also announced that manufacturing facilities and office buildings that are not deemed essential services may open in limited ways beginning on May 18. The governor stated at his press conference that the following applies:


-Manufacturers may open with a 25 percent occupancy limitation and staggered workforce, if necessary. -Manufacturing employees must maintain a six foot separation.


If a six foot separation cannot be achieved, the employer must use controls like Plexiglass between work stations.


Businesses located in office buildings may also open on May 18. These businesses may open their offices to either five employees or 25 percent of the workforce, whichever is greater, provided that employees maintain appropriate social distancing.


Do you have an update on the lawsuit filed last week against several cities and counties based on their COVID-19 orders?


Yes. The Court poured out the plaintiffs and instructed them to start at the district court level. The dismissal states that:


“Ideally, these debates would play out in the public square, not in courtrooms. No court should relish being asked to question the judgment of government officials who were elected to make difficult decisions in times such as these. However, when constitutional rights are at stake, courts cannot automatically defer to the judgments of other branches of government. When properly called upon, the judicial branch must not shrink from its duty to require the government’s anti-virus orders to comply with the Constitution and the law, no matter the circumstances.”


The case came about when State Representative Briscoe Cain (R – Deer Park) and another attorney, on behalf of several businesses (e.g., vape shops, a drag strip, an axe-throwing facility, hair salons, a gym, and a martial arts and yoga studio), two individuals, and all those “similarly situated” filed a “petition for writ of mandamus” with the Texas Supreme Court on April 28.


A writ of mandamus is, in plain English, a request to the court to order government officials to stop some action that is alleged to be such an abuse of discretion that immediate, emergency action by the state’s highest court should be taken. Instead of going to a trial court, appealing to an appeals court, and then asking the Texas Supreme Court to review the case, the writ is filed directly with the Texas Supreme Court. That court can then decide quickly whether to issue a command that is binding on local officials. As stated above, the justices decided quickly, but not in the way the plaintiffs would have liked.


The Court’s denial further provides that:


“Those who object to these restrictions should remember they were imposed by duly elected officials, vested by statute with broad emergency powers, who must make difficult decisions under difficult circumstances. At the same time, all of us – the judiciary, the other branches of government, and our fellow citizens – must insist that every action our governments take complies with the Constitution, especially now. If we tolerate unconstitutional government orders during an emergency, whether out of expediency or fear, we abandon the Constitution at the moment we need it most…


Any government that has made the grave decision to suspend the liberties of a free people during a health emergency should welcome the opportunity to demonstrate – both to its citizens and to the courts – that its chosen measures are absolutely necessary to combat a threat of overwhelming severity…


When the present crisis began, perhaps not enough was known about the virus to second-guess the worst-case projections motivating the lockdowns. As more becomes known about the threat and about the less restrictive, more targeted ways to respond to it, continued burdens on constitutional liberties may not survive judicial scrutiny.”


Further Updates


Has the Texas Medical Board adopted any rules in the wake of Executive Order GA-19? How do they affect “med spas” and similar health care facilities?


Yes. The Governor adopted Executive Order GA-19 on the same day as Executive Order GA-18. The latter is the order that, among other things, retains stay home/work home while allowing essential services and activities, allowing retail-to-go, and “re-opening” certain businesses. 


The former didn’t garner as much attention among city officials. It essentially allows health care providers to re-open for most procedures, so long as certain conditions are met:


“All licensed health care professionals shall be limited in their practice by, and must comply with, any emergency rules promulgated by their respective licensing agencies dictating minimum standards for safe practice during the COVID- 19 disaster…”


In the wake of the order, some confusion arose about certain health providers, such as “med spas” that offer treatments and services for Botox, skin care, laser hair removal, and similar services.  To address the confusion, the Texas Medical Board issued an emergency rule containing guidance for health care facilities. The rule mandates, among many other things, mask protocols, pre-appointment screenings, and other items.


Where can I find archived issues of the TML Coronavirus Updates?


TML Coronavirus Updates are archived by date here and by subject here.