Q&A on the new order from Governor Abbott
Has the governor issued a new executive order that supersedes his previous social distancing order?
Yes. Today the governor issued a new executive order that supersedes his original social distancing order (GA-08). The new order extends through April 30, 2020. Also, he has closed all Texas schools through May 4, 2020, and that date may be extended.
Each city official should read the entire order (linked above), but in summary the order provides that:
- Every person in Texas shall, except where necessary to provide or obtain essential services, minimize social gathering and minimize in-person contact with people who are not in the same household.
- Essential services are those defined by TDEM according to the U.S. Department of Homeland Security.
- All Texans should follow the President’s and CDC’s hygiene guidelines.
- All Texans should avoid eating out, but take advantage of carry out and drive-thru restaurants.
- It does not prohibit people from accessing essential services or engaging in essential daily activities, such as going to the grocery store or gas station, providing or obtaining other essential services, visiting parks, hunting or fishing, or engaging in physical activity like jogging or bicycling, so long as the necessary precautions are maintained to reduce the transmission of COVID- 19 and to minimize in-person contact with people who are not in the same household.
- Texans should stay away from nursing homes and similar facilities.
- Schools shall remain temporarily closed to in-person classroom attendance and shall not recommence before May 4, 2020.
Does the governor’s new order supersede local (e.g., city and county) orders?
Yes, at least partially. It clearly supersedes “any conflicting order issued by local officials in response to the COVD-19 disaster, but only to the extent that such a local order restricts essential services allowed by this executive order or allows gatherings prohibited by this executive order.” That means a city may not define essential services differently than TDEM and the U.S. Department of Homeland Security have, but even their guidance leaves unanswered questions. It appears that the most significant preemptive effect of the new order is to allow religious gatherings conducted in churches, congregations, and houses of worship, so long as appropriate social distancing guidelines are followed.
The governor then suspended Section 418.108 of the Texas Government Code (The Texas Disaster Act) and several other laws, some of which are unnamed, “to the extent necessary to ensure that local officials do not impose restrictions 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.” Section 418.108 is the core authority for mayors to declare, and city councils to extend, local states of disaster, including movement of persons and occupation of premises. This suspension would appear to mean that a city’s stay home/work home order is superseded by the order’s edict that “every person in Texas shall, except where necessary to provide or obtain essential services, minimize social gathering and minimize in-person contact with people who are not in the same household.”
League staff will continue to analyze the order and report further in tomorrow’s update.
Where do we stand right now with regard to federal and state guidance and orders, including the new order in the question above?
The federal government has not “ordered” anything. Instead, President Trump and the Center for Disease Control issued the following guidance, which is in effect through April 30: (1) listen to and follow the direction of your state and local health authorities; (2) if you feel sick, stay home; (3) if someone in your household has tested positive for coronavirus, keep the entire household at home; (4) if you are an older person, stay home and away from other people; (5) if you are a person with a serious underlying health condition putting you at risk, stay home and away from other people; (6) work or engage in schooling from home whenever possible; (7) if you work in a critical infrastructure industry, you have a special responsibility to continue to go to work; (8) avoid social gatherings in groups of more than 10 people; (9) avoid eating and drinking at bars, restaurants, and food courts—use drive thrus, pick up, or delivery options; (10) avoid discretionary travel, shopping trips, and social visits; (11) do not visit nursing homes or retirement or long-term care facilities unless to provide critical assistance; and (12) practice good hygiene.
With regard to state-level orders, Governor Abbott has today ordered compliance with the items in the bulleted list in the first question above.
Because the federal government has issued only guidance, the only non-local (e.g. city or county) mandatory restrictions are those imposed by Governor Abbott’s new order.
What action has the governor taken with respect to first responders and testing?
Yesterday, the governor issued the following press release:
Governor Greg Abbott has waived certain statutory provisions to ensure public safety employees who contract COVID-19 during the course of their employment will be reimbursed for reasonable medical expenses related to their treatment of COVID-19. Because the nature of their duties has caused them to increase their risk of contracting COVID-19, the Governor has waived these statutory provisions so that public safety employees who contract COVID-19 are not also financially penalized.
“Texas’ public safety employees are vital to our COVID-19 response,” said Governor Abbott. “These brave men and women are on the front lines and risking potential exposure to keep our communities safe. By waiving these regulations, Texas will ensure that those who may contract COVID-19 will have the support they need to pay for medical expenses.”
While the actual order is not posted on the governor’s website, League staff obtained this language from his office:
In accordance with section 418.016 of the Texas Government Code, the Office of the Governor grants DWC’s request to suspend Texas Government Code 607.002(1) and (2) to the extent necessary to allow those public safety employees, who were likely to have been exposed to COVID-19 while in the course of their employment, to be entitled to the reimbursements set forth in 607.002 of the Government Code.
Those subsections provide that:
Sec. 607.002. REIMBURSEMENT. A public safety employee who is exposed to a contagious disease is entitled to reimbursement from the employing governmental entity for reasonable medical expenses incurred in treatment for the prevention of the disease if:
- the disease is not an "ordinary disease of life" as that term is used in the context of a workers’ compensation claim;
- the exposure to the disease occurs during the course of the employment; and
- the employee requires preventative medical treatment because of exposure to the disease.
The apparent intent of the order is to remove any impediments to a city providing and paying for testing for its first responders.