(b) A governmental body shall allow each member of the public who desires to address the body regarding an item on an agenda for an open meeting of the body to address the body regarding the item at the meeting before or during the body's consideration of the item..."
Because - for the duration of the statute suspensions - that section no longer mandates a city to allow public comment on normal agenda items, a city isn't required to do so. And, if a city doesn't allow public comment on normal agenda items, the requirement to have two-way communications is superfluous. Thus, a city might be able to have a telephone conference for city councilmembers and not provide a general public comment session or allow members of the public to speak on agenda items. In any case, it makes sense for a city to allow as much public input as possible. One way cities have done so is to provide an email address and/or drop box where citizens can submit written comments. Another way is that some cities have required citizens who wish to comment to sign up in advance with a telephone number, and then have city staff call the person on the phone at the appropriate time to make their comments.
That advice DOES NOT apply to statutorily-mandated public hearings, such as zoning and similar hearings. A city would need to arrange for public communication at those.
Because the attorney general's guidance has conflicting provisions, city officials should consult with local legal counsel regarding their open meetings efforts.
Is there additional guidance on meetings conducted via telephone conference?
Yes, the Texas Department of Information Resources has prepared a short manual on the subject. DIR has also offered assistance for cities related to teleconferencing and videoconferencing. Visit dir.texas.gov (click on the Cooperative Contracts for Remote Access link), email email@example.com, or call 512-475-4700.
Does Executive Order GA-08's mandate to temporarily close schools include day cares?
Governor Abbott issued Executive Order No. GA-08 which, in part, mandates that schools temporarily close. In a virtual town hall held March 19, 2020, the governor stated that the school closure applies to both public and private K-12 schools, as well as institutions of higher education (with some exceptions for certain college facilities).
He also explained that the temporary closure of schools does not apply to day cares, which are encouraged to stay open but follow certain higher standards. The Texas Health and Human Services website advises as follows: "This executive order does NOT apply to child care facilities including a day care center, group day care home, or family home. All child care facilities should continue to follow the guidance from HHSC Child Care Licensing (see COVID-19 Guidance to Child Care Providers), the Center for Disease Control (CDC) and the Texas Department of State Health Services (DSHS)."
In addressing the operations of day cares in any particular city, officials should also consider any local disaster declaration and regulations.
Does Executive Order GA-08's mandate to avoid social gatherings in groups of more than 10 people apply to church services?
Governor Abbott issued Executive Order No. GA-08 which, in part, mandates that every person in Texas shall avoid social gatherings in groups of more than 10 people. In a virtual town hall held March 19, 2020, the Governor stated that, while churches are encouraged to find alternate means to hold services (e.g., remote services) or provide seating in a way that allows individuals to sit a sufficient distance from one another, they are not subject to Executive Order GA-08. CDC guidance for faith-based organizations is available here
In addressing the operations of churches in any particular city, officials should also consider any local disaster declaration and regulations.
How should certain directives in Executive Order GA-08 be enforced?
Governor Abbott issued Executive Order No. GA-08 which provides, in part, that people shall avoid eating or drinking in bars, restaurants, and food courts, or visiting gyms or massage parlors; however, the use of drive-thru, pickup, or delivery options are allowed and highly encouraged. In a virtual town hall held March 19, 2020, the Governor stated that this directive might be enforced in various ways against establishments and/or individuals.
For instance, the Governor suggested that a bar violating this directive might be reported to the Texas Alcoholic Beverage Commission, which is authorized to revoke the bar's alcoholic beverage license for failure to comply. He also suggested that a restaurant violating this directive might be reported to the Texas Department of State Health Services, which regulates food establishments.
Finally, the Governor mentioned law enforcement may play a role in enforcing Executive Order GA-08. A city may enforce a penalty of a fine not to exceed $1,000 or confinement in jail for a term not to exceed 180 days for a failure to comply with a local disaster declaration, but only if the city's emergency management plan includes a provision establishing an offense under Government Code Section 418.173. If a city wants the ability to enforce this penalty as to Executive Order GA-08, TML recommends that: (1) the city's emergency management plan provide that a failure to comply with the plan, or a rule, order, or ordinance adopted under the plan is punishable as authorized in Government Code Section 418.173; and (2) that any local disaster declaration expressly incorporate state orders (e.g., Executive Order GA-08).
Does Executive Order GA-08 prohibit a city council from holding an in-person meeting?
TML does not understand Executive Order GA-08 to prohibit a city from holding an in-person meeting. First, GA-08 prohibits "social" gatherings of groups of more than 10 people, and a meeting of the city council does not appear to be a social function. Cf., e.g., Tex. Gov't Code § 551.001 (providing that the term meeting does not include a social function unrelated to public business). Second, even if "social gatherings" of more than a certain number of people are prohibited, that order would - according to CDC guidance
- arguably apply only to conferences, festivals, parades, concerts, sporting events, weddings, and other types of assemblies. Without an express provision otherwise, it would not apply to government meetings. Finally, GA-08 expressly provides that government entities "will continue providing essential services."
In addressing this question, city officials should also: (1) consider any local disaster declaration; and (2) remember the Governor suspended various provisions of the Opens Meetings Act, and the suspensions may assist cities in holding meetings without face-to-face interaction (i.e., by telephone or videoconference).
How does Executive Order GA-08 relate to a local disaster declaration order?
A mayor serves as the governor's designated agent in the administration and supervision of disaster management duties set out in state law and may exercise the same powers granted to the governor under the Texas Disaster Act of 1975 (Chapter 418 of the Government Code) on an appropriate local level. Tex. Gov't Code § 418.1015(b). TML understands this to mean that a mayor could issue a local disaster declaration that is more stringent than Executive Order GA-08.
In addition, a city may have in place other regulations that impact the issues addressed in Executive Order GA-08. For instance, with respect to disease management, cities can take any action that is necessary to promote health and suppress disease, including quarantine, examining and regulating hospitals, regulating ingress and egress from the city, and fining those who do not comply with the city's rules. See Tex. Health & Safety Code §§122.005 (Type A general law cities) and 122.006 (home rule cities).
May our mayor ask the state to provide legal counsel regarding Executive Order GA-08?
The Texas Disaster Act of 1975 provides that a mayor may request the attorney general to provide legal counsel to a city subject to a declared state of disaster "on issues related to disaster mitigation, preparedness, response, and recovery applicable to the area subject to the disaster declaration" during the declared state of disaster and the 90-day period following expiration or termination of the disaster declaration. Id. § 418.193.
What if a hospital won't release a patient's Coronavirus test results so that treating or transporting first responders can potentially return early from self-quarantine?
Some hospitals and other caregivers have reportedly been withholding COVID-19 test results from first responder agencies, citing HIPAA privacy laws. First, hospitals should be reminded that treating agencies may choose to waive a patient's HIPAA privacy to anyone if the information is necessary to prevent or lessen a serious and imminent threat to the health and safety of a person or the public (see p. 3 of this DHHS bulletin). Second, first responders may request that patients sign a HIPAA waiver during treatment or transport. Agencies should pre-populate the section of the form stating who can receive the information with the name and information of the agency, then print out and carry several copies with them on their duties. The signed forms can be presented to the hospital or other caregiver when test results are needed to clear first responders from self-quarantine or for other COVID-19 purposes. Finally, TML has requested that President Trump use emergency powers to expand the federal HIPAA exception so that disclosure of COVID-19 test results to first responders is mandatory rather than discretionary by hospitals. We will report back in a future review if that request is granted.
Has the Secretary of State's Elections Division issued further guidance on a city's option to temporarily move its May election to November?
Yes. The following guidance was issued yesterday afternoon:
- This is NOT a permanent move. The Governor's proclamation has the effect of postponing an election, but it is not a permanent move. The result is that your current office holders will be holdovers until the next election occurs. Your newly-elected office holders in November will have a shorter term. Their next election will return back to the May date.
- Elections that have been properly cancelled because no seats were contested: If your entity cancelled their May 2, 2020, election, your new officers will still be able to take office after the May 2, 2020 election date. If you cancelled part of your election, you will still let the candidates who were declared elected be sworn in and the remainder of your election will occur in November if you choose to postpone your May election. For those officers that took the oath of office after the May 2, 2020 date, you would not have to place their names in the "unopposed candidates declared elected" box on your ballot in November as these candidates will have already taken office.
- Multi-County Territories: If your entity is in more than one county, you will be required to use each county's polling places for the November 2020 election. You will also be required to share at least one early voting location in accordance with Section 85.010 of the Texas Election Code.
- Countywide Polling Places (Vote Centers): If your county utilizes countywide polling places for November 2020, then you will be required to use all polling locations within each county that contains territory for your entity.
- Contracting Issues: If a contract hasn't been executed between the county elections officer and the local political subdivision, the county does NOT have an obligation to contract in May 2020. If a contract has been executed, then both parties would need to consult with their attorney regarding options for modifying the terms of the contract. Additionally, when you contract with your county in November, this allows you to use a joint ballot, shared election workers, and shared voting system equipment. Political subdivisions will most likely not be required to obtain their own separate voting system equipment or epollbooks.
Christina Worrell Adkins
Legal Director - Elections Division
Office of the Texas Secretary of State
Where can I find archived editions of this and previous TML Coronavirus Updates?
All TML Coronavirus Updates: Questions and Answers are archived online here.