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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 www.dshs.texas.gov/coronavirus, 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 gencounsel@tml.org.
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.
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