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May 26

May 26, 2020 TML Coronavirus Update #50

Posted on May 26, 2020 at 5:12 PM by TML Staff

Urgent Updates


I missed the League’s “Coronavirus (COVID-19) Update Webinar: What You Need to Know.” Is the recording archived?


Yes, the webinar was recorded and is now available at no charge on the League’s Coronavirus web page under the “TML Resources” heading.


Did the governor say anything of interest on his call with mayors and county judges last Friday (May 22)?


The call was reserved for Q&As based on questions submitted by mayors and county judges. On it, the governor discussed swimming pools, and reiterated that the owner (including a city) decides whether to open (in accordance with guidelines of course). “I would not order a local government to open their pool,” he said. “I leave that to the discretion of the local government.” 


He concluded his comments by saying that, “you [local officials] know better than I do what the facts are on the ground in your particular location.” Hopefully, that philosophy continues into the future, especially into the legislative session.


The governor’s office has created an email address for mayors and county judges to express their views on anything related to the virus. Mayors should email the governor’s office at with questions or concerns. 


Has the governor issued a new executive order that expands the enumerated list of covered services in Executive Order GA-23?


Yes. Today (May 26), the governor issued the following press release:


“Governor Greg Abbott today issued a proclamation expanding additional services and activities that can open under Phase II of the state's plan to safely and strategically open. With this proclamation, water parks, recreational sport programs for adults, driver education programs, and food-court dining areas within shopping malls can begin operations with limited occupancy or regulations to protect the health and safety of Texans.


Beginning Friday, May 29th, water parks can open but must limit their occupancy to 25% of normal operating limits. Components of these water parks that have video arcades must remain closed. Starting Sunday, May 31st, recreational sports programs for adults can resume, but games and similar competitions may not begin until June 15th. Driver education programs can resume operations immediately. 


Food-court dining areas within shopping malls can also immediately resume operations, but malls are encouraged to designate one or more individuals who are responsible for ensuring health and safety practices are followed, including: limiting tables to six individuals; maintaining a six-feet distance between individuals sitting at different tables; cleaning and disinfecting tables between uses; and ensuring no condiments or other items are left on tables between customer uses. 


Minimum standard health protocols outlined by the Texas Department of State Health Services are recommended and located on the Open Texas webpage.


What action did the governor take last week (on May 22) regarding jails?


Last week, the governor issued Executive Order GA-25, which provides that:


“All county and municipal jails are closed to in-person visitation, and every person in Texas shall avoid in-person visitation at closed jails; provided, however, that this restriction does not apply to visitation by (i) an attorney meeting with a client; or (ii) a religious leader or member of the clergy. Any visitation allowed under this executive order should be conducted in accordance with guidance issued by the Texas Commission on Jail Standards.”


The exact guidance to which the governor refers is unclear, but all of the Texas Commission on Jail Standards’ memoranda are available here.


You answered a question from the TML COVID-19 webinar relating to use of CRF funds for first responder activities and concluded that the guidelines are very strict in that regard. Do you have an update on the nuances related to that answer?


Yes. The question posed at the webinar was this: “If you have a first responder who is an FTE (in the budget) and they spent all of their time on COVID-19 response, is their straight time eligible under the CARES Disaster Relief Fund?”


The answer we provided was this: “As of right now, the federal CARES Act requires any expenditure of coronavirus relief fund revenue to be spent only to cover expenses that were not accounted for in a city’s most recently approved budget as of March 27, 2020. In other words, regardless of expenditure limitations in the state and federal guidelines referenced above, the revenue can go only towards unbudgeted expenses paid by the city due to the public health emergency in connection with COVID-19…”


That answer is correct, but perhaps incomplete. The following Q&As are from the U.S. Department of Treasury Q&A on CRF expenditures.


“The Guidance says that a cost was not accounted for in the most recently approved budget if the cost is for a substantially different use from any expected use of funds in such a line item, allotment, or allocation. What would qualify as a ‘substantially different use’ for purposes of the Fund eligibility? 


Costs incurred for a ‘substantially different use’ include, but are not necessarily limited to, costs of personnel and services that were budgeted for in the most recently approved budget but which, due entirely to the COVID-19 public health emergency, have been diverted to substantially different functions. This would include, for example, the costs of redeploying corrections facility staff to enable compliance with COVID-19 public health precautions through work such as enhanced sanitation or enforcing social distancing measures; the costs of redeploying police to support management and enforcement of stay-at-home orders; or the costs of diverting educational support staff or faculty to develop online learning capabilities, such as through providing information technology support that is not part of the staff or faculty’s ordinary responsibilities.


Note that a public function does not become a ‘substantially different use’ merely because it is provided from a different location or through a different manner. For example, although developing online instruction capabilities may be a substantially different use of funds, online instruction itself is not a substantially different use of public funds than classroom instruction.”


“The Guidance states that the Fund may support a ‘broad range of uses’ including payroll expenses for several classes of employees whose services are ‘substantially dedicated to mitigating or responding to the COVID-19 public health emergency.’ What are some examples of types of covered employees? 


The Guidance provides examples of broad classes of employees whose payroll expenses would be eligible expenses under the Fund. These classes of employees include 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. Payroll and benefit costs associated with public employees who could have been furloughed or otherwise laid off but who were instead repurposed to perform previously unbudgeted functions substantially dedicated to mitigating or responding to the COVID-19 public health emergency are also covered. Other eligible expenditures include payroll and benefit costs of educational support staff or faculty responsible for developing online learning capabilities necessary to continue educational instruction in response to COVID-19-related school closures. Please see the Guidance for a discussion of what is meant by an expense that was not accounted for in the budget most recently approved as of March 27, 2020.”


City officials should always consult with local legal counsel regarding appropriate uses of CRF funds.


Further Updates


Have additional Texas cities been sued based on their enforcement of the governor’s orders?


Yes. A local restaurant sued the City of Galveston and several city officials on May 19. The lawsuit alleges that:


-Under the governor’s previous order (GA-18), bars are not “closed.” Rather, the order provides only that people shall avoid them. (Editor’s note: The attorney general has previously advised that the “shall avoid” language in the orders does, in fact, mean that related businesses must remain closed.)

-The Texas Disaster Act does not allow city officials to close down bars.

-The city violated the home rule amendment to the Texas Constitution when it closed bars because that action is inconsistent with GA-18.

-The city violated other provisions of the Texas Constitution relating to creating offenses and due process.


The icing on the cake of the poorly-drafted pleadings is that Executive Order GA-18 expired prior to the plaintiff’s filing. The latest order (GA-23) allows bars to be open pursuant to certain guidelines. 


What’s the latest in Congress regarding further Coronavirus stimulus legislation?


According to CapitalEdge, senators adjourned last Thursday for the traditional Memorial Day recess. Prior to completing business, Senate Majority Leader Mitch McConnell (R – KY) mentioned some of the items he hopes to bring up for votes upon their return in June. His list did not include another coronavirus relief package.


House Democrats offered their opener for negotiations on another COVID-19 relief plan last week with the approval of the “HEROES Act” (HR 6800), a $3 trillion measure whose centerpiece is a $1 trillion proposal for direct aid to states and local government entities of all population sizes. The CapitalEdge summary of the 1,815-page HEROES Act is available at


McConnell and most of the Senate Republican Caucus continue to believe that Congress should wait until the impacts of the first three and one-half relief packages can be assessed before acting on another plan and adding to the growing federal deficit. A few Republican senators have publicly expressed support for additional state and local aid, but they are not in the leadership and have not yet made a dent in McConnell’s timeline.


McConnell did acknowledge that there will be another relief bill in a conversation with the President, even reportedly putting a price tag of $1 trillion or less on it during their conversation. In addition, Treasury Secretary Steve Mnuchin told senators that there is a “strong likelihood” that there will be another coronavirus relief bill.


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


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