These days, with COVID-19, many of us feel like it’s a challenge to know exactly what we can and cannot do from day to day because the rules are constantly changing. What businesses are allowed to open? How many people are allowed in? Are masks required? Not only do these rules change often, but they are different from state to state, county to county, and city to city. This article will identify the rulemakers in Texas, their authority to make rules on the fly, and shed some light on why the rules are different from place to place and are ever changing.
Coronavirus-related rules that affect most Texans’ day-to-day lives are the result of executive orders issued by Gov. Greg Abbott for the state, county judges for their respective counties, and mayors for their city or town.
The Texas Government Code gives our governor the authority to declare a state of disaster for some or all of our state. Likewise, county judges and mayors may declare a local state of disaster in their respective political subdivisions (except for certain airports located within those subdivisions, which are governed by a separate board).
The Government Code defines “disaster” as “the occurrence or imminent threat of widespread or severe damage, injury, or loss of life or property resulting from any natural or man-made cause, including fire, flood, earthquake, wind, storm, wave action, oil spill or other water contamination, volcanic activity, epidemic, air contamination, blight, drought, infestation, explosion, riot, hostile military or paramilitary action, extreme heat, cybersecurity event, other public calamity requiring emergency action, or energy emergency.”
During a state of disaster our elected officials from the executive branch have the authority to issue executive orders. The governor may issue executive orders, proclamations and regulations and amend or rescind them. Executive orders, proclamations and regulations have the force and effect of law. A county judge or the mayor of a municipality may control ingress to and egress from a disaster area under the jurisdiction and authority of the county judge or mayor and control the movement of persons and the occupancy of premises in that area.
In keeping with one of the bed rock principles of our government, there are checks and balances in place for executive orders. A state of disaster expires after a short period of time, unless lawfully renewed. It may be terminated earlier by the executive that made the declaration if the state of disaster no longer exists. Additionally, the legislature has authority to terminate an executive disaster declaration at any time.
The governor’s executive orders trump local governments’ executive order if there is a conflict in the language of the order. At the local level, the county judge’s order trumps a mayor’s order if there is a conflict. For example, if Abbott’s executive order states that everyone must wear a face mask inside any retail establishment in the state of Texas, a county judge’s order stating that face masks are recommended but not required to be worn inside a public place in the county would conflict, at least partially, with the governor’s order. In some cases, an executive order from a lower level executive may be more restrictive than a higher-ranking order as long as it does not contain conflicting language.
Declaring a state of disaster also provides avenues to obtain federal or additional funding. Additionally, when the governor declares a state of disaster, the Texas Supreme Court is permitted to modify or suspend procedures for the conduct of any court proceeding affected by a disaster during the pendency of a disaster declared by the governor for not more than 90 days from the date the order was signed unless renewed by the chief justice of the supreme court.
Recently, the Texas Supreme Court has exercised its authority. It has extended deadlines to file and serve civil suits, limited the right to conduct jury trials throughout the state, and allowed for court proceedings to take place remotely by phone or video conference. The Texas Supreme Court has resolved some possible points of confusion on existing parent-child visitation court orders. Those orders remain in effect, access to a child is not affected by the pandemic, and that the original published school schedule shall control and school closings do not affect possession orders. Finally, the Texas Supreme Court has given authority to individual counties and districts to use their discretion in how to hold court.
Our local Denton County courts are “open” for business. Pleadings and other documents are filed electronically. Most hearings and trials are conducted remotely over Zoom and broadcast live on YouTube in accordance with the open courts doctrine. Additionally, depositions, mediations and various meetings are also being conducted via Zoom.
For more information of the rules governing these uncertain times, executive orders may be found on Abbott’s website, gov.texas.gov; the county’s website, dentoncounty.gov, and each municipality’s website. Orders issued by courts may be found on the Texas Supreme Court’s website, txcourts.gov/supreme or a local court website (e.g., dentoncounty.gov).