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Jun 26

June 25, 2020 TML Coronavirus Update #72

Posted on June 26, 2020 at 12:00 PM by TML Staff

Urgent Updates


Will there be a TML Coronavirus Update tomorrow?


Unless there is important breaking news, there will be no Update tomorrow. Let’s all take a break for TGIF and watch out for the Saharan dust cloud! We’ll be back on Monday.


What actions did the governor take today (June 25) regarding the spread of COVID-19 in Texas and in my community?


He took two actions. First, he announced a temporary pause in the re-opening of Texas. According to his press release:


“Governor Greg Abbott today announced that the State of Texas will pause any further phases to open Texas as the state responds to the recent increase in positive COVID-19 cases and hospitalizations. Businesses that are permitted to open under the previous phases can continue to operate at the designated occupancy levels and under the minimum standard health protocols provided by the Texas Department of State Health Services.


‘As we experience an increase in both positive COVID-19 cases and hospitalizations, we are focused on strategies that slow the spread of this virus while also allowing Texans to continue earning a paycheck to support their families,’ said Governor Abbott. ‘The last thing we want to do as a state is go backwards and close down businesses. This temporary pause will help our state corral the spread until we can safely enter the next phase of opening our state for business. I ask all Texans to do their part to slow the spread of COVID-19 by wearing a mask, washing their hands regularly, and socially distancing from others. The more that we all follow these guidelines, the safer our state will be and the more we can open up Texas for business.’”


Second, he issued an Executive Order relating to hospital bed availability. According to his press release:

“Governor Greg Abbott today issued an Executive Order to ensure hospital bed availability for COVID-19 patients as Texas faces an increase in COVID-19 cases and hospitalizations. The Governor’s order suspends elective surgeries at hospitals in Bexar, Dallas, Harris, and Travis counties. Under this order, the Governor directs all hospitals in these counties to postpone all surgeries and procedures that are not immediately, medically necessary to correct a serious medical condition or to preserve the life of a patient who without immediate performance of the surgery or procedure would be at risk for serious adverse medical consequences or death, as determined by the patient’s physician. 

Through proclamation, the Governor can add or subtract from the list of counties included in the Executive Order to address surges in hospitalizations that may arise in other parts of the state.

‘As Texas faces a rise in COVID-19 cases, we are focused on both slowing the spread of this virus and maintaining sufficient hospital capacity for COVID-19 patients,’ said Governor Abbott. ‘These four counties have experienced significant increases in people being hospitalized due to COVID-19 and today’s action is a precautionary step to help ensure that the hospitals in these counties continue to have ample supply of available beds to treat COVID-19 patients. As we work to contain this virus, I urge all Texans to do their part to help contain the spread by washing their hands regularly, wearing a mask, and practicing social distancing.’”


All this information about what’s going on and what a city can and can’t do has become very complicated. Can you give us a very basic, short-form explanation of the major issues as they stand today (June 25)?


Sure! Let’s take a gander.


The Governor’s Current Order: Phase III of Reopening

Executive Order GA-26 implements this phase of the state’s re-opening. The order is much different than previous orders. At its core, it provides that:


“Except as provided in this executive order or in the minimum standard health protocols recommended by DSHS, found at, people should not be in groups larger than ten and should maintain six feet of social distancing from those not in their group.”


Beyond that, the order allows people to access various businesses and take part in various activities. The best way for a city official to determine what’s open and which guidelines apply is to visit the governor’s Open Texas web page. That page indicates which activities are now allowed according to the guidance document linked for each type of business or activity.


The order supersedes local orders and prohibits confinement in jail for a violation.


As mentioned above, the governor announced today a temporary pause in the re-opening of Texas.


Face Masks 

Individuals: According to Executive Order GA-26, “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.” Based on that, some cities that adopt orders generally providing that individuals “should” wear masks when they can’t social distance. Others include the language from GA-26 that no penalties will be sought against an individual who refuses to wear a mask.


Businesses: The governor has verbally indicated his belief that local governments can require businesses to require customers to wear masks, and that doing so is consistent with Executive Order GA-26. Although the governor’s order prohibits a local jurisdiction from imposing a civil or criminal penalty for failure to wear a face covering, according to the governor this prohibition applies only to regulating the behavior of individuals, not businesses. In other words, he appears to be saying that a city may issue a local order imposing fines on businesses for failure to require employees and customers to wear masks, but may not issue local orders imposing fines on individuals for not wearing masks. 


His comments were made in reference to an order issued by Bexar County Judge Nelson Wolff. More precisely, the order provides that all commercial entities providing goods or services directly to the public must develop and implement a “health and safety policy,” and that 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.” The order also provides for a $1,000 fine on a business that fails to “develop and implement” the policy.


City Authority Relating to City Facilities

Executive Order GA-26 provides that “local government operations, including county and municipal governmental operations relating to licensing (including marriage licenses), permitting, recordation, and document-filing services, [may resume] as determined by the local government.” Moreover, the order provides that “nothing in this executive order or the DSHS minimum standards precludes requiring a customer to follow additional hygiene measures when obtaining services.” Those two provisions indicate that a city has broad authority over its own facilities.


Fourth of July Celebrations 

Of particular interest to many is the “outdoor events” category on the Open Texas web page, which allows for Fourth of July celebrations in a city. The guidance linked in the previous sentence incorrectly provides that gatherings of 500 or more require a mayor’s approval. The 500 number is incorrect because the governor issued a subsequent proclamation that modifies Executive Order GA-26. The  modification grants more authority to mayors and judges by lowering the crowd threshold from 500 to 100. Interested city officials should read the actual language of Executive Order GA-26 as modified by proclamation prior to taking action relating to outdoor celebrations.


The guidance further provides for the following “local approval factors.” Again the guidance may still say it applies to gatherings of 500 or more, but the subsequent proclamation lowers that number to 100:


-Local approval for large outdoor gatherings (those with an estimated attendance exceeding 100 individuals) is appropriate in this instance because a statewide standard is unable to take into account the various factors needed to ensure such a gathering in varied locations is safe and will minimize the spread of COVID-19. Further, business parity is not an issue at large outdoor events.

-In evaluating large gatherings (those with an estimated attendance exceeding 100 individuals), the county judge or the mayor, as applicable, in consultation with the local public health authority, should consider the following factors:


1. The overall number of projected attendees;

2. The likelihood of individuals over the age of 65 attending;

3. The density of the forum and the ability to ensure social distancing of 6 feet between individuals; and

4. The level of transmission in the county.


-Gatherings of less than 100 individuals may proceed consistent with all the health protocols above without approval of the county judge, local health authority, or mayor, as applicable.


Voting by Mail

Most city elections have been moved to November, but a few will have elections sooner and many city officials will likely vote in the July 14 primary runoff election. With regard to voting by mail, the attorney general issued a warning to county officials, which may be a preview of what city election officials will be dealing with in November. The warning essentially states that his position is that the fear of contracting COVID-19, without more, isn’t a sufficient reason for a voter to request a mail-in ballot. The Texas Supreme Court largely agreed, but litigation in federal court is still pending.


Open Meetings Act:

Earlier this year, the governor suspended various provisions of the Open Meetings Act to facilitate videoconference and teleconference virtual meetings and to allow cities control over who attends in-person meetings. 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 declaration has been extended for successive 30-day periods, including the current 30-day extension effective until July 11. That means the relevant open meetings laws remain suspended until at least that date (or until affirmatively rescinded). We can’t be certain, but it is highly likely that the governor will continue to repeatedly extend his declarations. We’ve heard from his staff that they have no immediate plans to rescind the suspensions, which are sensible and seem to be working well, but that can’t be guaranteed.


CRF funds

Federal funds to combat COVID-19 have been made available to every city in Texas. Cities in a county of 500,000 or more population received their money from that county. The funds may be used as provided in U.S. Treasury Department guidance and in accordance with any further restrictions included in an agreement with the county. All other cities (except the few with 500,000 or more population that received a direct allocation) can draw down their funds from the state through the Texas Division of Emergency Management.  Those funds are subject to the Treasury guidance and further restrictions that have been imposed by TDEM.


Whew, that’s like drinking from a fire hose! Let us know if you’d like a short summary of other topics by emailing Scott Houston, TML general counsel, at


Further Updates


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


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