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Urgent Updates
Did the governor issue a new executive order to prohibit jail
time for the violation of his disaster orders?
Yes. His office released the following today (May
7):
“Governor Greg Abbott today modified his executive orders related to COVID-19 to
eliminate confinement as a punishment for violating these orders. These
modifications are being applied retroactively.
‘Throwing Texans in jail who have had their businesses shut
down through no fault of their own is nonsensical, and I will not allow it to
happen,’ said Governor Abbott. ‘That is why I am modifying my executive
orders to ensure confinement is not a punishment for violating an order. This
order is retroactive to April 2nd, supersedes local orders and if correctly
applied should free Shelley Luther [a Dallas-area salon owner who was jailed
for contempt of court after refusing to close her business]. It may also
ensure that other Texans like Ana Isabel Castro-Garcia and Brenda Stephanie
Mata who were arrested in Laredo, should not be subject to confinement. As
some county judges advocate for releasing hardened criminals from jail to
prevent the spread of COVID-19, it is absurd to have these business owners
take their place.’”
What was the impetus of the governor’s “no jail time” order,
discussed above, and what does it mean for local enforcement?
A salon owner in the Dallas area refused to comply with the
governor’s previous order that salons remain
closed. (Note: A more recent order allows salon openings starting tomorrow
(May 8) with certain limitations.)
The fact that the order required salons to remain closed is
undisputed. In fact, the Texas attorney general's office, along with the
Texas Department of Licensing and Regulation, released a guidance letter stating that GA-18 is “neither
vague nor unenforceable” and that “barbershops, cosmetology salons (including
nail and esthetician), massage establishments, and laser hair establishments
must remain closed until further notice. The Governor's order overrides
conflicting local and county orders.”
Executive Order GA-18 also provides as follows: “local
officials may enforce this executive order as well as local restrictions that
are consistent with this executive order.”
The judge in the case of the salon owner sentenced her to
seven days in jail for, according to news reports, contempt of court for
refusing to apologize or show any remorse.
On the heels of the sentencing, several things happened:
-The attorney general wrote a letter to the judge stating that “your actions abused
your discretion in holding Ms. Luther in contempt and ordering her to jail in
a civil court proceeding.”
-All of the judges in the trial court’s judicial district
wrote a letter back to the attorney general, stating that, “in this context,
for you to ‘urge’ a judge towards a particular substantive outcome in this
matter is most inappropriate and unwelcome. Please do not communicate with
the Court in this manner further.”
-The governor made the statement that “I join the Attorney
General in disagreeing with the excessive action by the Dallas Judge, putting
Shelley Luther in jail for seven days. As I have made clear through prior
pronouncements, jailing Texans for non-compliance with executive orders
should always be the last available option.”
-The governor issued the new executive order, discussed above, which prohibits
confinement as a punishment for violating his orders.
-A petition for habeas corpus was filed with the Texas Supreme
Court, which today (May 7) ordered the salon owner released from jail.
-The attorney general wrote another letter to the Dallas judges stating “Do not
forget: Although judges are independent of the Executive Branch, they are not
independent of the people.”
What does all this mean? It’s probably fair to say no one
has any idea. It’s a certainty that the inconsistencies above send mixed
signals to local law enforcement, business owners, and others.
Does it mean that a person who violates the social distancing
mandate in the order can’t be arrested, even if doing so puts another’s life
in danger? Does it mean that a business that should currently be closed,
like a massage parlor, can remain open if the owner simply refuses to close
it and pays his fines? Only time will tell.
Further Updates
Where can I find the protocols for the various businesses that
have been re-opened by executive order GA-21?
They are available on the governor’s Open Texas web page.
What has the lieutenant governor been working on?
The lieutenant governor’s “Texans Back to Work Task Force”
issued a 113-page report with hundreds of recommendations about
re-opening the state for business. With regard to city authority, the
following appears on page 49 of the report:
“The state should enact an off-switch policy to end local
disaster declarations on a statewide basis once the emergency is passed. The
state needs to provide legislative clarification to commissioner’s courts and
city councils related to declaring states of emergency. The recent shutdown
showed how the principles of representative government can be thwarted when
mayors and county judges have too much power in making unilateral decisions
without the agreement of the rest of the executive body.”
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. We’ve heard from his staff that
they have no immediate plans to make changes. In addition, the
Lieutenant Governor’s “Texans Back to Work Task Force” issued a 113-page report that contains the following on page 50
related to long-term re-opening of the economy:
“Encourage all levels of government in Texas to accelerate the
process of moving as much of their interactions with the public online. For
example, government entities should move to accept electronic payments,
accept all legal and regulatory filings electronically, maintain records
digitally, and conduct administrative hearings by video conference. The Texas
Open Meetings Act and the Texas Public Information Act should be amended, as
necessary, to remove barriers to effective use of technology.”
Have universities developed COVID-19 resources?
Yes. The Kinder Institute for Urban Research at Rice
University has several COVID-19 resources for cities, including the
information contained in this message:
“When the COVID-19 crisis hit everyone hard in March, the
Kinder Institute and Houston Education Research Consortium began to pivot
toward COVID-19 work and its impact on Houston. We’ve already had a
significant impact. Our efforts include the following: a new “COVID-19 and Cities” blog series, an infographic highlighting the estimated number of lives
saved by Harris County’s “Stay Home, Work Safe” order, and collaborations to
help roll out the Gulf Coast COVID-19 Registry and the Gulf Coast Community Impact Survey. We’re not quite sure
where COVID-19 is taking Houston and other cities. But one thing is for sure
— the Kinder Institute will be there with you wherever this ride goes.”
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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