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Urgent Updates
Will the governor take any virus-related action heading into
the Fourth of July weekend?
We don’t know. Record case surges are taking place all over
the state, but we haven’t heard anything from the governor’s office today
about that. Unless he makes an announcement today, tomorrow, or over the
weekend, you won’t hear from us. Everyone please have a safe long
weekend as we celebrate our independence.
What’s the latest with regard to city mask requirements for
individuals?
Businesses
With regard to requiring a business to have a policy that
requires masks for employees and patrons, several cities have adopted orders
or ordinances. The governor has verbally indicated his belief that local
governments can do so, and that doing so is consistent with his executive
orders.
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. That 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.
Individuals
Many cities have a provision in their orders or ordinances
that encourages individuals to wear a mask when social distancing isn’t
possible. At least one city (and perhaps one or two others), the City of
Round Rock, issued an order that requires individuals 10 years
of age or older to wear, with some exceptions, masks: (1) inside any building
that is open to the public; and (2) outside with a group of people where it
is difficult to keep six feet away from others in the group. The order
provides for a verbal or written warning for the first infraction and an
escalating monetary penalty for subsequent violations.
But does a city have the authority to do what Round Rock
did? League staff, along with the city’s attorney, prepared an email to
the governor’s office explaining why we thing a city can and asking for his
blessing. His staff declined to answer, and suggested we submit the
issue to the attorney general’s office for review. We did so yesterday
(July 1). (Remember that any mayor can ask disaster-related questions of the
attorney general by emailing disaster-counsel@oag.texas.gov.)
The argument for city authority is spelled out in detail in
the next Q&A, but the attorney general’s office – without much legal
support – disagreed. The city attorney received a call yesterday
afternoon from two assistant attorneys general.
Essentially, they said “you raised some interesting
questions,” but that their view is that the governor’s power over cities is
“unlimited.” For home rule cities at least, that can’t be true because
Article XI, Section 5, of the Texas Constitution grants them the power of
local self-government. And The League is in no way suggesting that any
city should or should not take any particular action related to the
virus. We are just providing information, which is what we’ve been doing
all along. As in every case, city officials should consult with local legal
counsel regarding local action.
So, what’s the argument that a city can impose an individual
mask requirement and attach a penalty for noncompliance?
Again, the League is in no way suggesting that any city should
or should not take any particular action related to the virus. The
following is the email that was sent by the Round Rock city attorney to the
attorney general’s “disaster counsel” email. The attorney general’s office
doesn’t usually respond in writing to those emails, and that was true here as
well.
“I am the City Attorney for the City of Round Rock. The Mayor
of the City has authorized and requested me to send this email to you, on his
behalf. The purpose of this email is to request your thoughts regarding the
authority of a city council of a home rule city to declare a public health
emergency and to adopt an emergency ordinance pursuant to its home rule
charter.
For your convenience, I have attached a copy of section 3.14
of the Round Rock Home Rule Charter, as well as the Emergency Ordinance
unanimously adopted by the Round Rock City Council this past Monday. As I am
sure you are aware, the authority of the citizens of Round Rock to adopt a
home rule charter flows from Article XI, Section 5, of the Texas
Constitution. This authority is completely separate from Chapter 418 of the
Government Code.
In addition to our charter, state law (Texas Health and Safety
Code Sections 122.005 and 122.006) provides express authority for the
governing bodies of cities to protect residents from communicable diseases.
The authority granted to the governing body by this state statute is separate
and independent from a mayor’s “executive” power pursuant to his or her
disaster/emergency-related authority under Chapter 418 of the Govt Code.
Since the authority for a city council of a home rule city to
deal with a local public health emergency flows from the Constitution, Sec.
122.06 of the Health and Safety Code, and its home rule charter, this
authority is not subject to any limiting authority of the governor.
Executive Order GA-28’s superseding language provides that:
“This executive order shall supersede 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 services allowed by this
executive order, allows gatherings prohibited by this executive order, or
expands the list or scope of services as set forth in this executive order. Pursuant
to Section 418.016(a) of the Texas Government Code, I hereby suspend Sections
418.1015(b) and 418.108 of the Texas Government Code, Chapter 81, Subchapter
E of the Texas Health and Safety Code, and any other relevant statutes,
to the extent necessary to ensure that local officials do not impose
restrictions in response to the COVID-19 disaster that are inconsistent with
this executive order, provided that local officials may enforce this
executive order as well as local restrictions that are consistent with this
executive order.”
Let’s break down the suspended statutes:
-Suspended Government Code Section 418.1015(b) provides that
“[a]emergency management director serves as the governor's designated agent
in the administration and supervision of duties under this chapter. An
emergency management director may exercise the powers granted to the governor
under this chapter on an appropriate local scale.”
-Suspended Government Code Section 418.108 allows a mayor to
declare a local state of disaster and issue orders pursuant to his or her
declaration and emergency management plan.
-Suspended Health and Safety Code Chapter 81, Subchapter E,
relates to the state’s and a local health authority’s power to issue
quarantine orders and similar measures.
The order and statutory provisions above all relate to a mayor’s
or a local health authority’s powers in a disaster, and the governor has
clearly taken steps to restrict that power.
HOWEVER, as stated above the Texas Health and Safety Code provides
separate authority for a city council to adopt disease prevention measures:
Sec. 122.005. POWERS OF TYPE A GENERAL-LAW
MUNICIPALITY. (a) The governing body of a Type A general-law
municipality may take any action necessary or expedient to promote health or
suppress disease, including actions to:
(1) prevent the introduction of a communicable disease
into the municipality, including stopping, detaining, and examining a person
coming from a place that is infected or believed to be infected with a
communicable disease;
(2) establish, maintain, and regulate hospitals in the
municipality or in any area within five miles of the municipal
limits; or
(3) abate any nuisance that is or may become injurious to
the public health.
(b) The governing body of a Type A general-law
municipality may adopt rules:
(1) necessary or expedient to promote health or suppress
disease; or
(2) to prevent the introduction of a communicable disease
into the municipality, including quarantine rules, and may enforce those
rules in the municipality and in any area within 10 miles of the
municipality.
(c) The governing body of a Type A general-law
municipality may fine a person who fails or refuses to observe the orders and
rules of the health authority.
Sec. 122.006. POWERS OF HOME-RULE MUNICIPALITIES. A
home-rule municipality may:
(1) adopt rules to protect the health of persons in the
municipality, including quarantine rules to protect the residents against
communicable disease; and
(2) provide for the establishment of quarantine stations,
emergency hospitals, and other hospitals.
The statutory provisions above grant authority to a city
council to take action to prevent the spread of communicable diseases, such
as COVID-19. That council authority is separate and apart from a
mayor’s (or local health authority’s) power that flows from the suspended
provisions in Texas Government Code Chapter 418 (The Texas Disaster Act) or
Health and Safety Code Chapter 81. In other words, they allow the
governing body of a city to take action – including a mandatory mask
requirement with a class C criminal penalty or a civil penalty – completely
outside the purview of Executive Order GA-18 or the Disaster Act.
In the case of the City of Round Rock, the city posted a
public agenda of the time and place of the emergency meeting and gave the
public detailed notice of the emergency ordinance that was going to
considered and acted upon. The City Council held a public meeting during
which the ordinance was presented, discussed, debated, and voted upon. The
emergency ordinance received the affirmative vote of all seven members of the
city council.
While GA-18 also suspends “any other relevant statutes,” it
doesn’t expressly state that the governor has suspended the provisions in
Health and Safety Code Chapter 122. Moreover, even though Executive
Order GA-28 provides that “[i]ndividuals are encouraged to wear appropriate
face coverings, but no jurisdiction can impose a civil or criminal penalty
for failure to wear a face covering,” that relates to the authority granted
by the order and the Disaster Act. It doesn’t limit a city council’s
authority under other law, i.e. the Home Rule Charter and Health and Safety
Code Chapter 122.
When asked about Round Rock’s individual mask mandate Monday
night on KXAN, the governor said “that part seemed like it would contradict
my executive order, without me having seen what you’re talking about. That
said, I do want to applaud the City of Round Rock for stepping up [and
imposing] a mask requirement.” (Emphasis added.)
On more than one occasion, the governor has expressed
concerned that local jurisdictions will arrest people and throw them in jail
for violating executive orders of mayors or county judges. Round Rock’s
ordinance is enforced by warnings and fines only. There will be no
confinement in jail of anyone found violating this ordinance.
In closing, the city council agrees 100 percent with the
governor that wearing a mask is essential to stop the spread of Covid-19.
However, a “mandatory requirement” in an executive order with no actual
enforcement will not accomplish the desired goal.
Texas Municipal League staff has shared the above analysis
with the governor’s office, and the governor’s general counsel requested that
we send this to you. We believe that the process we followed allows for
the local legislative body to deal with a local issue without violating
either the letter or spirit of the Governor’s orders under Chapter 418 of the
Government Code.
It seems like a win-win for the citizens of Texas cities like
Round Rock, and we hope you agree.”
As stated in the previous question, they did not.
Has the U.S. Treasury Department issued updated guidance
regarding the use of CRF funds?
Yes. Yesterday (July 2), the Treasury Department released
new guidance on the Coronavirus Relief Fund (CRF) in the
CARES Act. Of particular interest is the following:
“Initial guidance released on April 22, 2020, provided that
the cost of an expenditure is incurred when the recipient has expended funds
to cover the cost. Upon further consideration and informed by an
understanding of State, local, and tribal government practices, Treasury is
clarifying that for a cost to be considered to have been incurred,
performance or delivery must occur during the covered period but payment of
funds need not be made during that time (though it is generally expected that
this will take place within 90 days of a cost being incurred).”
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.
Further Updates
Two days ago, we surveyed whether mayors believe that Fourth
of July celebrations in excess of 100 people should be
allowed. How did the survey go?
The results showed that some mayors appear to be much more
cautious right now. Asked whether they would allow private outdoor
gatherings in excess of 100 people, 68 percent (76) of the 112 responding
mayors said no. (The League has 1,160 member cities). Respondent
city populations ranged from to 482-2.3 million. The following questions
were asked:
-Will you be approving PRIVATE outdoor gatherings in excess
of 100 people (with or without conditions)? Out of 112
responding mayors, 76 said no and 36 said yes. Of the 36 responding yes,
21 reported that they will impose conditions or restrictions on the gathering.
-Will your city be conducting a CITY (e.g., city-sponsored,
city-funded, on city property, etc.) Fourth of July celebration (including a
parade and/or fireworks)? Out of 111 responding mayors, 84 said no and 27
said yes. Of the 27 responding yes, 19 reported that they will impose
conditions or restrictions on the gathering.
What are the results of TML’s mid-year Fiscal Conditions
Survey?
Each year, TML conducts a fiscal conditions survey of its
member cities. With an unexpected public health crisis and an economic
recession, most cities will have to make difficult decisions over the next
coming months. This is why TML created a special-edition, mid-year fiscal
conditions survey to help cities navigate the upcoming budget planning
process. The full results are on the TML website at https://www.tml.org/ArchiveCenter/ViewFile/Item/172.
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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