The vaccine and mask wars are not over in Texas.  On June 7, 2021 Governor Greg Abbott signed into law a bill that prohibits any business operating in Texas from requiring what has been referred to as a “vaccine passport.” SB 968 prevents any Texas business from asking customers to show proof of their vaccination status or post-infection recovery status in exchange for receiving services. This law comes after Abbott issued a similar executive order on April 5, 2021 that applied only to state agencies and private organizations that receive state funding. Nursing homes and long-term care facilities are exempt and can still require visitors to show proof of vaccination.

In addition to banning private businesses from requiring proof of vaccination, SB 968 provides that any business that requires proof of vaccination will not be permitted to engage in state contracts, and some state agencies that regulate different business sectors may screen for compliance with SB 968 in issuing licenses and permits. SB 968 states that it should not be read to prohibit businesses from implementing COVID-19 screening and infection measures in line with state and federal law. Of course, that makes it difficult for a business to determine what rules it can follow since the recommendations of the Center for Disease Control (CDC) may conflict with other regulations such as mandates that masks cannot be required to be worn.

In addition to SB 968, Governor Abbot also signed Executive Order 38, which specifically prohibits any governmental entity in Texas from mandating masks be worn on the premises.  The order impacts all counties, cities, school districts and public health authorities. The order also states there are “no COVID-19 related operating limits for any business or other establishments”.  The mask mandate of Executive Order 38 does not directly impact private businesses so it is unknown whether a private business can require patrons wear masks, even though they would be prohibited the from requiring proof of vaccination. Generally, mask requirements were seen as the general rule that private owners can restrict patrons from their premises similar to a “no shirt, no shoes no service” policy so long as the policy was not discriminatory.

The result of these various regulations and Executive Orders is to make both public and private entities uncertain as to what they can do to protect the health and safety of the general public.  For example, the Dallas County Courts recently enacted an administrative order which requires all individuals entering the courthouse to “wear a face covering while in common areas of the court building.”  The basis for the authority to issue this order was cited to be an executive order of the Texas Supreme Court.  The order of the Texas Supreme Court stated that the courts can, “take any other reasonable action to avoid exposing court proceedings and participants to the threat of COVID-19.” As a result there appears to be a clear conflict between the authority which the Texas Supreme Court has granted the various courts in Texas and Executive order of Governor Abbott.

In addition several counties including Dallas, Harris and Bexar County have passed, or have pending, regulations to require masks be worn in various situation.  While whether masks can be banned or not, none of the orders at issues prohibit mask wearing if an individual so chooses to wear a mask. It is clear that both the mask requirements and mask prohibitions will be challenged in court with possible differing results.  Ultimately, the decision should be decided by the Texas Supreme Court about whether any mandates prohibiting mask requirements are enforceable.

The attorneys in our Austin and Dallas office are available to answer any questions you may have about masking orders and the Great mask Battle.  You may email your questions to info@gstexlaw.com.

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