TML Coronavirus Update

Urgent Updates

What is all of the hullabaloo about big city mayors, face masks, the governor’s press conference yesterday, the statement the governor made today (June 17), and county judge authority?

Well, what’s happened in the last two days is difficult to reconcile as a legal proposition, and it’s fair to say that statements made by the governor about his “plan” may not be supported by the text of his executive order. Let’s walk through this.

The Texas Tribune reported yesterday (June 16) in an article titled “Texas' big-city mayors ask Gov. Greg Abbott for power to impose face mask rules” that “the mayors of nine of Texas' biggest cities urged Gov. Greg Abbott in a letter Tuesday to grant them the ‘authority to set rules and regulations’ mandating face masks during the coronavirus pandemic.”

The mayors’ letter includes the following:

“We are writing to you for the authority to set rules and regulations on the use of face coverings in each of our cities. A one-size-fits-all approach is not the best option. We should trust local officials to make informed choices about health policy. And if mayors are given the opportunity to require face coverings, we believe our cities will be ready to help reduce the spread of this disease.”

According to the The Texas Tribune article linked above, which was posted yesterday (June 16), the governor said that “local officials wanting to slow the spread of the virus have other tools at their disposal. For example, while they can't impose fines related to masks, they can fine businesses or individuals for violating rules on gatherings.”

But today, the governor told a television news station verbatim that:

“There has been a plan in place all along. All that was needed was for local officials to actually read the plan that was issued by the State of Texas. It turned out earlier today that the county judge in Bexar County finally figured that out. They finally read what we had written and they finally realize they are capable of doing what we want to make sure that individual liberty is not infringed on by government, and hence government cannot require individuals to wear masks. However, pursuant to my plan, local governments can require stores and businesses to require masks. That’s what was authorized in my plan. That’s what the Bexar County judge has now realized, and so what Bexar County is doing and what every county is authorized to do, and that is to impose requirements on business operations. Businesses…they’ve always had the opportunity and ability, just like they can require people to wear shoes and shirts, these businesses can require people to wear facemasks if they come into their businesses. Now local officials are just now realizing that that was authorized.  So here’s the bottom line: I had two standards: One, no Texan can be put in jail for failing to follow these standards. Two, no government can mandate that individuals wear face masks. That said, when people go out and about, as they are walking around town, they don’t need to wear a face mask, but when they do go in a store or other business, those businesses can require, and that’s exactly what it looks like local governments will begin to do.”

It’s always been clear that a private business can require a mask. Beyond that, according to the governor, city and county officials (and League staff) just haven’t read his orders and accompanying guidance. But one county’s officials “finally read what we had written,” and now local governments can require a business to require a patron to wear a mask. Following the above interview, the governor’s staff provided League staff with the following statement:

“Judge Wolff’s order is not inconsistent with the Governor’s executive order. Our office urges officials and the public to adopt and follow the health protocols for businesses established by doctors that are available at open.texas.gov.”

The text of the governor’s current order (Executive Order GA-26) provides that:

“In providing or obtaining services, every person (including individuals, businesses, and other legal entities) should use good-faith efforts and available resources to follow the minimum standard health protocols recommended by DSHS. Nothing in this executive order or the DSHS minimum standards precludes requiring a customer to follow additional hygiene measures when obtaining services. Individuals are encouraged to wear appropriate face coverings, but no jurisdiction can impose a civil or criminal penalty for failure to wear a face covering.”

The order further provides that:

“All existing state executive orders relating to COVID-19 are amended to eliminate confinement in jail as an available penalty for violating the executive orders. To the extent any order issued by local officials in response to the COVID-19 disaster would allow confinement in jail as an available penalty for violating a COVID-l9-related order, that order allowing confinement in jail is superseded, and I hereby suspend all relevant laws to the extent necessary to ensure that local officials do not confine people in jail for violating any executive order or local order issued in response to the COVID-19 disaster.”

Moreover, the Texas attorney general, in a May 12  letter to San Antonio and Bexar County regarding his opinion of the their orders, stated that – with regard to masks – “individuals are free to choose whether to wear one or not.”

The Bexar County order that the governor references states that:

“[A]ll commercial entities in Bexar County providing goods or services directly the public must develop and implement a health and safety policy…The Health and Safety Policy must require, at a minimum, that all employees or visitors to the commercial entity's business premises or other facilities wear face coverings when in an area or performing an activity which will necessarily involve close contact or proximity to co-workers or the public where six feet of separation is not feasible…Failure to develop and implement the Health and Safety Policy required by this Executive Order within five (5) calendar days following the Effective Date may result in a fine not to exceed $1,000 for each violation.

Face Coverings - General Public. That all people 10 years or older shall wear a face covering over their nose and mouth when in a public place where it is difficult to keep six feet away from other people or working in areas that involve close proximity with other coworkers.

Consistent with Executive Order GA-26 issued by Governor Greg Abbott, no civil or criminal penalty will be imposed on individuals for failure to wear a face covering.”

So where does that leave us? The governor’s order still prohibits any type of penalty for the failure to wear a mask, but do the governor’s words trump the governor’s order? Each city will need to draw its own conclusions based on the information above, and any future clarifications provided by the governor. (Note: The Texas Tribune posted a second article regarding the above information moments before this email was distributed.)

Further Updates

What information does TML have for cities as they start to prepare for the upcoming budget year?

TML has developed a special-edition, mid-year fiscal conditions survey to help cities navigate the upcoming budget planning process. With an unexpected public health crisis and an economic recession, most cities will have to make difficult decisions over the next coming months. Survey questions center on current budget shortfalls, as well as the anticipated impact on next year budgets.

The full text of the survey is available here, but we prefer that you complete it online.

We ask that one official from each city complete the survey no later than Friday, June 19. Please contact JJ Rocha with questions at jj@tml.org or 512-705-3912. 

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