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May 07

May 7, 2020 TML Coronavirus Update #39

Posted on May 7, 2020 at 4:25 PM by TML Staff

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.