View All Posts

May 11

May 11, 2020 TML Coronavirus Update #41

Posted on May 11, 2020 at 6:14 PM by TML Staff

Urgent Updates


What is NLC doing to help cities advocate in Congress and how can we help?


NLC has launched the Cities Are Essential campaign, a grassroots advocacy campaign to ensure cities, towns, and villages are included in the next relief package. NLC intends to be bold and direct about the urgent need for direct federal support and the consequences the American economy will suffer without it. Our ask is simple: $500 billion in federal aid over the next two years to help municipalities and counties, regardless of size, respond to and recover from COVID-19.  


NLC has asked state leagues to ask city officials to share their COVID-19 stories so they can use them in their communications and federal advocacy work. 


In addition, NLC has prepared tweets and letters to members of Congress, along with infographics and sample letters to the editor for your use.


NLC is anticipating the House to unveil their new plan tomorrow with $850 billion in funding for cities, towns, villages, and counties.  To help convince senators, they are asking city officials who advocate to focus on the overall economic impact to the community, such as how lack of funding could affect the sanitation in your city, the tourist industry, etc.


What did the governor announce today with regard to how the state will allocate federal stimulus funds from the Coronavirus Relief Fund (CRF)? 


On a conference call with mayors and county judges, the governor, lieutenant governor, and speaker of the house today (May 11) announced that the state will be allocating federal CRF funds to certain cities and counties. 


City officials must understand that this money must be used in accordance with U.S. Department of Treasury guidance. In other words, it must be used for virus-related expenses, or will be subject to claw-back. Examples of acceptable expenditures for reimbursement include:


-Medical expenses.

-Public health expenses.

-Payroll expenses for public safety, public health, health care, human services, and similar employees whose services are substantially dedicated to mitigating or responding to the COVID-19 public health emergency.

-Expenses of actions to facilitate compliance with COVID-19 related public health measures.

-Expenses associated with the provision of economic support in connection with the COVID-19 public health emergency.

-Any other COVID-19-related expenses reasonably necessary to the function of government that satisfy the fund’s eligibility criteria.


Funds may not be used to fill shortfalls in revenue to cover expenses that don’t otherwise qualify, and they must be used by December 30, 2020.


The funding essentially works as follows:


-The federal government allocated $11.24 billion to Texas, with the state authorizing a state/local allocation of 55 percent/45 percent.

-Of that $11.24 billion, $5.06 billion has been made available for cities and counties.

-Of that $5.06 billion, the U.S. Department of Treasury previously allocated $3.2 billion directly to the six cities and 12 counties with more than 500,000 population.  These large counties may, but are not required to, share their direct allotment with cities in those counties.

-Of that $5.06 billion, the state is allocating $1.85 billion for the remaining counties and certain cities within those counties. This $1.85 billion is the subject of today’s announcement.


TDEM has prepared a document showing the $1.85 billion allocation amounts. The governor released the following press release explaining the process:


“Governor Greg Abbott, Lieutenant Governor Dan Patrick, House Speaker Dennis Bonnen, Senate Finance Committee Chair Jane Nelson, Vice Chair Juan “Chuy” Hinojosa, and House Appropriations Committee Chair Giovanni Capriglione, and Vice Chair Oscar Longoria today sent a letter to city and county leaders announcing $5.06 billion in funding available to local governments in Texas through the Coronavirus Aid, Relief, and Economic Security (CARES) Act. Of this $5.6 billion, the U.S. Department of Treasury has directly sent over $3.2 billion to the 6 cities and 12 counties in Texas with a population greater than 500,000. The remaining $1.85 billion will be available to other cities and counties throughout the state. Funding will go towards reimbursement of direct expenses incurred by cities and counties due to COVID-19.


The 242 counties, and the cities within those counties, that did not receive direct allocations from Treasury are eligible to apply to the state for an initial $55 per capita allocation from the $1.85 billion. Once those jurisdictions provide documentation on the initial funding, they will then be able to access the remainder of their allocation on a reimbursement basis. The unallocated funds will be reserved for local expenses as future outbreaks and the long-term impacts of COVID-19 are better known. In the letter, the leaders encourage cities and counties to work together to address expenses that cross jurisdictional lines.


‘All Texans expect government to work in a unified fashion to address this unprecedented situation, and we will continue to do so,’ reads the letter. ‘Thank you again for your work on behalf of your residents. These are tremendously difficult times for all Texans. Please know that the elected representatives in y our state government are working continuously to protect the health and safety of this state, mitigate the economic ramifications of COVID-19, and build a path towards recovery.’


The Texas Division of Emergency Management (TDEM) will administer the reimbursement process and will partner with Texas A&M Agrilife Extension to provide individual assistance to each city and county throughout the process. Information on how to apply for funding, as well as guidance about eligible uses, can be found at the following website:”


The TDEM website referenced in the press release is excellent. City officials should carefully review the information there to understand how to apply for and appropriately use their allocations.


What additional virus-related opinions has the attorney general released?


Several were released last week. The questions and conclusions are as follows:


-Residency Restrictions and Superseding OrdersOpinion No. KP-0308 answered the question of whether a local governmental entity can “prevent an owner of a second home from occupying their property” or “limit occupancy of housing based on length of the occupancy’s term.”


The opinion concludes that:


“The Texas and United States Constitutions prohibit government action that unlawfully discriminates on the basis of residence. They also ensure citizens receive due process and that the government does not act arbitrarily. To the extent a local ordinance restricting access to or limiting occupancy of private property exceeds these boundaries, it is unconstitutional. In addition, the Governor declared a state of disaster in Texas due to COVID-19 on March 13, 2020, and issued executive orders related to the provision of essential services. Executive Order GA-21 supersedes any conflicting order issued by local officials in response to the COVID-19 disaster to the extent that such a local order restricts essential services, such as obtaining residential housing. GA-21 therefore prohibits a local governmental entity, acting under the authority of its emergency powers, from issuing an order that limits occupancy of housing based on length of the occupancy’s term.”


-Appraisal Review Board HearingsOpinion No. KP-307 answered “multiple questions about the appraisal review procedures available for property owners to protest changes in an appraisal record that adversely impact the property owner.”


The opinion concludes that:


“Subsection 41.41(a) of the Tax Code entitles a property owner to protest the determination of the appraised value of the owner’s property, in addition to other adverse determinations made by a chief appraiser. Subsection 45.45(n) of the Tax Code gives property owners a right to appear in person at a protest hearing. Subsection 41.45(o) of the Tax Code and title 34, subsection 9.805(d) of the Texas Administrative Code do not allow appraisal review boards to require protest hearings be conducted by videoconference in lieu of in-person hearings when requested by a property owner.


Subsection 41.461(a)(3) of the Tax Code requires a chief appraiser to deliver a copy of the protest hearing procedures to property owners initiating a protest. The appraisal district does not satisfy this requirement by only posting the protest procedures on the appraisal district website.


Subsection 41.12(a) of the Tax Code requires an appraisal review board, among other things, to approve the appraisal records by July 20. No later than the date it does so, the board must also deliver written notice to a property owner of any change in the records ordered by the board pursuant to subsection 41.11(a) that will result in an increase in the tax liability of the property owner. The board’s failure to deliver notice to a property owner required by section 41.11 nullifies the change in the records to the extent the change is applicable to that property owner. However, the nullification is limited to that subsection and does not apply to all failures to give notice required by the Property Tax Code.”


-Pawnshop Regulation and Superseding OrdersOpinion No. KP-306 answered the question of “whether the Dallas County Judge has authority to issue emergency orders regulating the business of pawnshops during a declared disaster.”


The opinion concludes that:


“Section 371.005 of the Finance Code provides that the Legislature has exclusive authority regarding the operation of pawnshops. A local official lacks authority to rewrite state law that the Legislature has expressly removed from local control. A court would likely find that the portions of Dallas County’s order purporting to regulate pawnshops by limiting the fees those businesses can charge and changing the length of time they must hold pledged goods are invalid and unenforceable.


After declaring a state of disaster in Texas due to COVID-19, the Governor issued Executive Order GA-21, which “supersedes 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” under the executive order. Operating a pawnshop provides essential lending services. Thus, Executive Order GA-21 prohibits a political subdivision from issuing a conflicting local order that restricts the operation of pawnshops. Whether a local order may limit the number of customers inside the premises of a pawnshop is a fact question. However, to the extent a pawnshop can operate under DSHS guidelines and consistent CDC recommendations with more than one customer on the premises at a time, a local order that purports to limit the occupancy of the premises to only one customer at a time, without regard to the size of the premises, conflicts with Executive Order GA-21 and, therefore, is superseded.”


-Local Commandeering of Property during DisasterOpinion No. KP-304 answered the question of “whether, when operating under a local disaster declaration, local governments may commandeer private property under Government Code section 418.108.”


The opinion concludes that:


“Section 418.108 of the Government Code authorizes the presiding officer of the governing body of a political subdivision to declare a local state of disaster and grants local authorities certain powers to respond to the disaster. Section 418.108 does not authorize a county judge, a mayor of a municipality, or any other local government official to commandeer private property to respond to a disaster.”


The opinion, in footnote 6, also added the following:


“Our conclusion does not foreclose the possibility that local government officials could possess authority to commandeer private property in certain limited circumstances when serving as the Governor’s designated agent to respond to local disasters. The Governor, through the disaster declaration, could authorize the designated “emergency management director,” which is the presiding officer of the governing body of an incorporated city or a county, to “commandeer or use any private property” upon determining that it is necessary to cope with the disaster subject to the compensation requirements. Id. §§ 418.017(c), .1015(a)–(b), .152. In considering a predecessor statute to chapter 418, this office concluded that a specific executive order activated the Governor’s emergency powers for local officials such that a county judge could use county equipment on private land if he reasonably deemed it necessary to meet or prevent a locally declared disaster. See Tex. Att’y Gen. Op. No. MW-140 (1980) at 3. Whether and to what extent local officials possessed the authority to commandeer private property would be decided on a case-by-case basis, considering the language of any relevant executive orders as well as the circumstances surrounding the disaster in question.”


What is an attorney general opinion and is a city official required to rely on the conclusions therein?


What exactly is an “AG opinion?” Put simply, it is a letter containing the Texas attorney general’s written interpretation of the law on a matter. Opinions are written only at the request of certain state officials, called “authorized requestors (e.g., the governor, the head of a department of state government or a committee of a house of the Texas Legislature, etc.).”


When the attorney general receives a request, it goes to a small group of assistant attorneys general known as the “opinion committee.” The committee accepts briefs from persons and groups who may be affected by the opinion; TML often files briefs in support of its member cities. The committee’s opinion is reviewed and signed by the attorney general before it is issued, making it his opinion, as well. Thus, an attorney general opinion is just a written letter from an attorney (the attorney general): (1) to a state official (rather than to a city official); (2) who may or may not have your city’s best interests in mind; (3) who doesn’t represent your city; and (4) who doesn’t regularly practice municipal law. 


Why should city officials care about the opinion of an attorney who does not represent them? While it is true that attorney general opinions are merely advisory in nature, Texas courts often give deference to their conclusions. Thus, an opinion containing a conclusion that is detrimental to cities is something of concern.


The good news is that Texas cities are very lucky to have an outstanding group of attorneys, both in-house and with private firms, who represent them. Some of the finest lawyers in the state practice municipal law. However, the law is rarely crystal clear. The TML legal services department has, for many years, used the following disclaimer:


“Lawyers give opinions, and no lawyer’s opinion is a guarantee. Your city attorney gives you an opinion believing it to be a defensible one. Some areas of the law are more uncertain than others and are therefore open to interpretation. When the law is especially unclear, we will suggest that you talk to your local counsel to get an answer from the one who will be following through as an advocate for that answer.”


Most attorneys are taught in law school that the way to address a legal problem is through some variation of “IRAC.” IRAC (issue, rule, application, conclusion) is a way of solving legal problems by: (1) identifying the legal issue by understanding the facts; (2) determining which legal rule governs; (3) applying that legal rule to the facts; and (4) concluding the best course of action. The AG opinion process leaves out the most important part of legal advice: the practical application of the law to the facts. That step, along with the client’s level of risk aversion and other factors, is crucial to recommending the best course of action in any given situation.


To be fair, the attorney general is mandated by statute to respond to requests for opinions, and over the years his office has issued several opinions with conclusions that are beneficial to cities. That being said, city officials should rely on their local legal counsel. That counsel is mandated by professional rules to be competent in municipal law. More importantly, however, that counsel can apply the law to the facts of each particular situation to help a city council decide whether and how to legally accomplish its objectives.


Further Updates


What is the status of the lawsuits related to elections, specifically voting by mail?


On April 17, Travis County District Judge Tim Sulak ordered a temporary injunction preventing the Travis County clerk from rejecting any mail ballot applications received from registered voters who use the disability category of eligibility as a result of the COVID-19 pandemic as the justification for submitting the application.


The attorney general immediately appealed the judge’s order, in addition to issuing a memo to county election officials emphasizing that the order has no effect during the appeal. (Note: voting rights activists in Dallas County have formally asked the district attorney to investigate whether the attorney general committed a crime when he issued his memo instructing elections administrators to not provide mail-in ballots to those submitting an application on grounds of disability for fear of contracting COVID-19 by voting in person.) The case was subsequently transferred from the Austin court of appeals to the 14th Court of Appeals in Houston.


On May 11, the attorney general filed a brief with the court of appeals arguing that the judge’s order represented an unlawful expansion of mail-in voting.


In addition to the state lawsuit, the Texas Democratic Party filed a lawsuit in federal court last month (April 2020) arguing that interpreting existing state statute to limit voting by mail violates federal law and the United States Constitution. A May 15 hearing is scheduled in this federal lawsuit before U.S. District Judge Fred Biery in San Antonio.


Finally, on May 11, a group of voters and civil rights groups filed a new lawsuit in federal district court in San Antonio. The plaintiffs’ complaint for injunctive relief alleges that certain existing state statutes governing the procedure for voting by mail are unconstitutional. These statutes include: (1) the requirement that voters pay for the postage to return their early voting ballots by mail; (2) the requirement that returned ballots be postmarked no later than 7:00 p.m. on election day and received by the county at the address designated on the ballot carrier envelope no later than 5:00 p.m. on the day after the election to be counted; (3) the requirement that voters submit two matching handwriting samples to have their ballots counted; and (4) the criminalization of a person assisting a voter in returning a marked mail ballot.


The League will continue to report on these developing cases.


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


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