Who gets to decide whether Dallas or Austin or any other part of Texas opens or closes for business?  As little consistency as there is from county-to-county about what is required from employers in the COVID-19 era, there is seemingly less consistency on whether the Governor or cities and counties have the authority to impose new requirements.  

The consequences of who has the authority get more serious when discussing whether a specific city or county may require persons to shelter-at-home or whether that authority belongs entirely to the Governor.  Certainly, the Governor’s actions early in the pandemic, allowing counties to issue shelter-at-home orders, lent the impression that the local governments had that authority. The Governor’s actions since May, however, have indicated otherwise, namely that he and he alone has the power.  

Without diving too deeply in the endless deep pool of public policy, we will explore whether Governor Abbott has what he claims to have, namely the power to order businesses to close or reopen, or to limit freedoms during the COVID-19 pandemic.

A.    Texas Constitution and Laws

In the seemingly endless series of Executive Orders, including Executive Order No. GA-29 and the Proclamation amending Executive Order GA-28 relating to mass gatherings in Texas, Governor Abbott consistently uses the phrase “NOW, THEREFORE, I, Greg Abbott, Governor of Texas, by virtue of the power and authority vested in me by the Constitution and laws of the State of Texas […]”.   Since the constitution is mentioned first, that is where we first focus our attention.

Article 1, Section 28 of the Texas State Constitution states, “No power of suspending laws in this State shall be exercised except by the Legislature.” 

The Texas Legislature has gradually given more power to the Governor to suspect laws.  For instance, under Chapter 418.016(a) of the Texas State Code has given the Governor the power to suspend “regulatory statutes” regarding state business and state agencies, as follows.

The governor may suspend the provisions of any regulatory statute prescribing the procedures for conduct of state business or the orders or rules of a state agency if strict compliance with the provisions, orders, or rules would in any way prevent, hinder, or delay necessary action in coping with a disaster.

More relevant to the COVID-19 pandemic, the Texas Legislature has also gradually transferred more responsibility for disaster or emergency management to the Governor.  Prior to 1951, that responsibility lay solely with local jurisdictions.  In 1951, the Legislature passed the Texas Civil Protection Act of 1951, the first law creating a State-wide emergency management organization and emergency management plan. The Act established a Disaster Relief Council chaired by the Governor and comprised of various agency heads, each responsible for particular emergency management functions.

The 1951 act was replaced with the Texas Disaster Act of 1975, which further increased the state-local coordination of emergency responsibilities. By 2009, after several phases of reorganization, the Disaster Relief Council had become The Texas Division of Emergency Management (TDEM), a division of the Texas Department of Public Safety (DPS).

According to DPS, “TDEM is charged with carrying out a comprehensive all-hazard emergency management program for the state and for assisting cities, counties and state agencies in planning and implementing their emergency management programs.” Specifically, the Texas Government Code requires TDEM to prepare and keep current a comprehensive state emergency management plan, the basic planning document for emergency management at the state level, and assist in the development and revision of local emergency management plans.  All or part of the state emergency management plan that TDEM prepares may be incorporated into regulations of the division or executive orders that have the full force and effect of law. 

B.   State of Disaster

Under the Texas Disaster Act of 1975, the Governor may, by executive order or proclamation, declare a state of disaster if the Governor finds a disaster has occurred or that the occurrence or threat of disaster is imminent. The Act gives the Governor the power to issue, amend, or rescind executive orders, proclamations, and regulations.  It also makes the Governor the commander-in-chief of state agencies, boards, and commissions having emergency responsibilities, including the TDEM.

As it relates COVID-19 shelter-at-home requirements, the Act grants the Governor the authority to control “movement of people” or “ingress and egress to and from a disaster area and the movement of persons and the occupancy of premises in the area.”  This is likely the language the Governor has been relying upon when thwarting the City Austin’s and Dallas County’s requests to allow them to issue county and city-specific shelter-at-home requirements to stem the pandemic. 

The Act was purposely designed to give the Governor wide latitude to act unilaterally during emergencies because Texas operates with a part-time Legislature, which meets only five months every two years in legislative session. Without the power to issue executive orders, Governor Abbott would have to call the Legislature back into a special session to manage the COVID-19 pandemic. 

By issuing a disaster declaration, the law allows the Governor to, in effect, grant himself broad powers, with few checks and balances.  These powers arguably include imposing limits on the size of public gatherings, curtailing business operations, and requiring face coverings.  As the Governor Abbot’s positions have started to anger members of both his own political party and the opposition, the extent of his discretion is coming under increased scrutiny.  We can expect that scrutiny to increase as the Texas Legislature returns for session at the beginning of 2021 and the country gears up for a Presidential election like none other. 

The attorneys in our Austin and Dallas are available to answer any questions you may have regarding the current state or local orders and proclamations.

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