The April 3 State Health Officer order combines the state’s definition of essential activities with the federal definition of essential workforce.
The COVID-19 pandemic has proved that, in Texas, the “roving, roiling debate over local control of public affairs has not, with increased age, lost any of its vigor.” City of Laredo v. Laredo Merchants Assoc., 550 S.W.3d 586, 588 (Tex. 2018). Although the majority of states across the country have issued statewide Shelter-in-Place or Stay-Home orders, Texas has demurred, initially altogether, deferring to counties and cities to use their own executive authorities as they deemed necessary, and then coming along in substance while eschewing the “stay-home order” characterization.
Until the tail end of March, Texas largely deferred to local authorities to determine what stay-home restrictions, if any, to put in place. On March 19, 2020, following his declaration of a state of emergency, Governor Abbott issued Executive Order GA 08, which cut only to the social aspects of pandemic mitigation—namely, by limiting public gatherings to 10 people and closing school, bars, gyms, and restaurants, with exceptions for pickup or delivery options. The Governor subsequently encouraged local governments to implement stricter standards—an invitation which local authorities in major Texas metroplexes quickly accepted, issuing their own fairly restrictive stay-home orders in late March. Then, on March 31, 2020, Gov. Greg Abbott issued Executive Order No. GA-14 (Texas Order), which although being categorized as a stay-home order, is slightly less restrictive than others in its class, as it does not expressly order Texans to stay home. In subsequent press conferences, however, the Governor was clear that the Order “requires all Texans to stay at home except to provide essential services or do essential things like going to the grocery store.”
The Texas Order went into effect on April 2, 2020, and will continue through April 30, 2020 (with school closures until May 4, 2020), subject to further extension.
In a press conference on April 2, Gov. Abbott characterized the new executive order “essential services and activities protocols,” but went out of his way to make clear that it was not a “stay-at-home” order. After some confusion, Gov. Abbott released a video the following day clarifying that his order “requires all Texans to stay at home” except for essential services. The State defines essential businesses and services to include all services deemed essential by the federal government (as listed by the U.S. Department of Homeland Security in its Guidance on the Essential Critical Infrastructure Workforce, Version 2.0)—plus religious services. This federal Guidance, initially issued on March 19, was recently amended to provide greater clarity as to what businesses qualify as critical infrastructure.
Importantly, the amended federal Guidance has substantially expanded the definition of critical infrastructure workers in the energy sector, which is of particular benefit in a state like Texas. Critical energy workers include:
The federal Guidance also clarified that manufacturer workers for health manufacturing—including biotechnology companies—are considered critical infrastructure.
But Texas’s stay-at-home order differs from others in a few key respects. First, the order contains a large carve-out for religious services. Although the State has encouraged religious services to be conducted from home or through remote services if possible, it expressly allows these services to continue as usual, so long as they are conducted with good hygiene practices and implement social distancing. On April 1, the Attorney General’s office issued guidance discussing how the faith community could participate in these sanctioned services without contributing to the spread of COVID-19.
Second, while not expressly exempted in the order, it seems firearm retailers will remain open across the State. On March 27, 2020, a few days prior to the Texas Order’s issuance, Texas Attorney General Ken Paxton issued a nonbinding opinion responding to lawmakers’ concerns that many counties had not designated gun retailers or manufactures as essential businesses in their stay-home orders. In the opinion, Attorney General Paxton concluded that local governments were prohibited from restricting the sale of firearms, even under their emergency authority.
Finally, the State has banned abortions under a prior executive order prohibiting all health care professionals and facilities from performing procedures that are not medically necessary. This ban was briefly lifted when, on March 30, U.S. district court judge Lee Yeakel blocked the state’s clinic closures. The next day, however, the Fifth Circuit intervened, issuing a temporary stay on Judge Yeakel’s decision. Thus, the ban is still currently in effect until further order by the Fifth Circuit after reviewing the parties’ arguments and briefing.
Failure to comply with the Texas Order may result in fines up to $1,000, imprisonment for up to 180 days, or both. So far, it appears that Texas authorities have initiated few enforcement actions, although the level of enforcement may vary from county to county. However, stricter enforcement measures are likely as the pandemic progresses, as evidenced by Harris County’s portal to report violators of the county’s Stay Home, Work Safe order.
The Texas judicial system is certainly ready for an influx of such enforcement actions—at the end of February, the Texas court system began to prepare for resistance to quarantine orders, appointing 31 judges and 25 appellate court justices from each region of Texas to enforce regulations set by state and local authorities. What’s more, a group of 250 attorneys have been selected to serve as quasi-public defenders for these quarantine violators, when and if the need arises. Thus, the State has created what may best be described as a COVID-19 shadow court system, as judges begin to handle cases arising from quarantine order violations across the state. This only emphasizes the need for businesses to proceed with caution when determining whether or not they qualify as an “essential business” under the State’s and/or their local governments’ stay-at-home orders.
State and local authorities have taken away some of the guesswork and provided businesses with the opportunity to obtain an official determination of its essential business status. The Texas Order provides a link to a waiver form by which a business may request an “essential business” determination from the Texas Division of Emergency Management. Businesses in Harris County may also apply locally for an essential business exemption. While neither the State nor local governments require these so-called “safe passage” letters, any business that does not clearly fall within the federal or state definitions of essential businesses may want to seek these government waivers to protect against the possibility of future enforcement actions.
Significant Local Governments’ Stay-Home Orders
Local government in most of the major metroplexes have issued stricter stay-home orders that were implemented far before the Texas Order was issued. As of Monday, April 6, 107 counties in Texas have issued stay-home orders. Those major counties include:
The list also includes a smattering of small counties across Texas, although most of the stay-home orders are concentrated in the major metropolitan areas. Additionally, many cities, such as Lubbock, have issued stay-home orders. In total, approximately 26 million Texans are currently under some form of local stay-home orders, which constitutes nearly 90% of the state’s population.
The local stay-home orders share many common restrictions, such as allowing only “essential businesses” to continue operations and allowing individuals to leave their homes only to perform “essential activities.” While these local orders once varied widely, previously defining, e.g., plant nurseries, mattress stores and RV retailers as essential, as the orders have been amended, they have come to closely resemble one another. For example, Dallas’s “Stay Home Stay Safe” order and Harris County’s “Stay Home, Work Safe” order are quite similar, with only minor differences such as Dallas County allowing certain pet grooming and daycare services, and Harris County allowing furniture stores to remain open. It appears that, as the pandemic progresses, counties have come to a relatively uniform agreement on what should be deemed “essential.” The orders still vary widely in duration, however. Some identify expiration dates, while other say they the orders are in effect until further amended, modified or rescinded. As the pandemic spreads, the end date of any of these orders is a moving target.
Some of the major differences between the local stay-home orders—e.g., religious services and gun retailers—are now rendered moot. Under the State order, the local stay-home orders are enforceable only to the extent they do not conflict with the State’s directive. Specifically, the Texas Order preempts any local restrictions on essential services allowed by the State, or any local provisions that allow gatherings the State prohibits. The State order has thus triggered a wave of amendments to already-existing local orders, primarily to (1) conform these orders to the State’s directives (e.g., to add in a religious service exemption), and/or (2) fill the gap the State order arguably left open—expressly ordering residents to stay at home.
How the State’s orders and the orders being issued by Texas counties and cities interact remains to be hashed out. The fluidity of the response to the COVID-19 pandemic cannot be emphasized enough—these the orders will likely change continually as COVID-19 developments occur, and will remain in effect for the foreseeable future. Local governments likely will amend already-existing orders to adjust restrictions on residents or to expand the duration of these existing restrictions. Finally, everyone should expect more restrictive directives to issue. On April 1, 2020, the City of Laredo, Texas, issued a “Cover Your Face Order,” which directs residents to cover their nose and mouth when entering a building that is not their home. This almost certainly will not be the last order of this nature. Stay safe out there.
For more information, please reach out to your regular Pillsbury contact or the authors of this client alert.
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