Thursday, April 2, 2020
Due to the need for frequent updates and modifications to information we’ve shared previously about the current pandemic, we’ve decided to shift our monthly interim updates into weekly pandemic updates, just like we do during a legislative session. (Insert your own joke comparing a legislative session to a disease pandemic here.)
More TDCAA coronavirus resources
We are posting all our COVID-19 information—including periodic updates like this one, sample motions and orders, etc.—on one page of our website. Visit https://www.tdcaa.com/covid-19-information/ for all COVID-19 questions and check it often, as we will update it more frequently. Recent additions include:
- Sample documents from Galveston County CDA Jack Roady, whose office recently had to compel testing of an arrestee under Health & Safety Code §81.050 (Mandatory Testing of Persons Suspected of Exposing Certain Other Persons to Reportable Diseases).
- More Zoom meeting tips on our “Video Conference Hearing Resources” page.
Governor Abbott’s lastest statewide order is known as Executive Order No. GA-14 (aka EO-14) “relating to statewide continuity of essential services and activities during the COVID-19 disaster,” and you can find a copy of it here. The order took effect this morning (April 2) with the stated goal that Texans “minimize social gatherings and minimize in-person contact with people who are not in the same household” unless they are providing an “essential service”—of which there appear to be many. The meaning of that term in EO-14 may differ from other local uses, which is just one of many questions we’ve already received about this latest order. We can’t answer all of them here, but we do have a few thoughts to share after fielding so many calls.
What the heck am I supposed to do with this?
First, for those of you in jurisdictions that have not previously imposed “stay at home” restrictions, know that arguably more restrictive versions of this order have been in place in many urban cities and counties for weeks and very few criminal enforcement actions have resulted. There’s probably a good reason for that—something to keep in mind going forward.
As for the specifics, we will first note that a close reading of the order does not require people to stay in their homes. (Seriously. Read it again.) It is true that the governor has publicly encouraged people to do so in both print interviews and special video statements and has even created a #stayhometexas hashtag to promote the practice. However, the text of this order nowhere requires such behavior. In fact, where there is conflict between EO-14 and some of the more restrictive local orders mentioned above, this may be one of the main rubs. Instead of mandating in writing that people stay home, EO-14 merely orders Texans to minimize contact with anyone not of their household unless it relates to an “essential service.” (More about that in a bit.) So while your local citizenry can perhaps best comply with EO-14 by staying home as much as possible, that is not specifically mandated by the order itself; make sure any officers trying to enforce the order are aware of that distinction.
Second, remember that the details in this order are intended to be *health and safety* directives. They are meant to slow or stop the current pandemic, full stop; everything else is secondary. We’ve already received multiple questions asking us to legally parse the wording, but frankly, that’s probably approaching the question from the wrong perspective. These kinds of orders are likely written more by doctors than lawyers, and if we started arresting people for not following “doctor’s orders” we’d all need to quadruple our present jail capacity! So one tip for working through these problems is to take off your lawyer hat and try approaching it from a health and safety perspective, not a criminal justice one.
That said, we know that these issues often only reach your desk after other, lesser interventions have been tried without success. In that case, those of you who have read the details of EO-14 are correct to think that problems will arise when criminal penalties are attached to a violation of an order that is not drafted with criminal enforcement as its priority. Among the challenges in enforcing such orders are that:
- most of the “shall” prohibitions in EO-14 have exceptions that swallow the rule;
- the liberal use of “shoulds” in EO-14 defies the usual scope of criminalization (e.g., “In providing or obtaining essential services, people and businesses should follow the Guidelines from the President and the CDC by practicing good hygiene …”); and
- tying prohibited conduct to federal guidelines and recommendations that are explicitly advisory in nature and that may change without notice is never a good idea.
We could go on, but you get our point: Criminal enforcement might best be considered a last resort when someone is acting the fool during this pandemic because the criminal justice options may be problematic. (Just make sure your local law enforcement agencies get that message too!)
As for what exactly this statewide order mandates or prohibits, note that EO-14 was issued by the governor after complaints from both local officials and business interests about differing definitions between jurisdictions of what was an “essential service” during local “stay at home” orders. The result is a complicated definition of such services in EO-14 that may be more expansive than in some local orders (which was probably not by accident, judging from the efforts of various businesses and industries to lobby for that plum label). To address the complaints about disparities, the order purports to “supercede any conflicting order issued by local officials in response to the COVID-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” (emphasis added). The order also purports to suspend various other laws “to the extent necessary to ensure that local officials do not impose restrictions inconsistent with the executive order, provided that local officials may enforce this executive order as well as local restrictions that are consistent with this executive order” (again, our emphasis added). Of course, that all assumes that people can figure out what is consistent or inconsistent with EO-14, and judging by the questions we are receiving, that is far from certain. Unfortunately, we are not in a position to cut through the Gordian knot created by the interplay of EO-14 and all the various local city and county emergency orders in this state.
Two orders enter, one order leaves
The potential of conflicting definitions of “essential services” has led several of you to ask us the ultimate question: “¿Quien Es Mas Macho?” No, wait, that’s not it—you’ve asked us whether the governor can actually override local orders in the absence of clear guidance such as that provided by Gov’t Code §418.108(h), which gives certain county orders precedence over city orders when they conflict. Unfortunately, there appears to be no similar statue in regard to state versus local orders, so we must leave that ultimate answer up to others. (And indeed, at least one of you has already asked the AG to answer a question about the scope of state and local authority during this pandemic.)
We are sympathetic to observers who have pointed out that some of these latest statewide executive orders seem to be straying beyond a mere suspension of “regulatory statutes” and “orders and rules of state agencies” (see Gov’t Code §418.016) or that the use of an evacuation statute to micromanage the “movement of persons” and “occupancy of premises” within a non-evacuating disaster area consisting of the entire state (see Gov’t Code §418.018) may be presumptuous. Anyone stuck at home with a fourth- or seventh-grader and their Texas history books knows that our state’s constitutional system purposely features a “weak governor” model that isn’t a nimble or efficient one when it comes to responding to a global pandemic. But the truth is that very few people have the time or patience for litigating those open questions right now, so short of finding a quick and dirty legal equivalent to Barter Town’s Thunderdome, perhaps you can suggest to your commissioners that they treat this as a puzzle to be solved, not a battle to be won. Collaboration and communication are key, as is a creative ability to harmonize differences that may not actually conflict when given a second look. So … good luck with that!
Executive Order 14 is not the only new change to report. For those with an airport in your jurisdiction that can handle anything bigger than a crop-duster, know that Gov. Abbot expanded his earlier executive order requiring the screening of certain air travelers (EO-11) to also include travelers coming from the states of California, Louisiana, and Washington, along with the cities of Atlanta, Chicago, Detroit, and Miami; that proclamation can be found here.
And speaking of travel, may we suggest that you check with local law enforcement agencies *before* they decide to set up checkpoints or roadblocks or initiate traffic stops without reasonable suspicion for the purposes of enforcing any of these state or local emergency orders? We have yet to see anything that would authorize such conduct, so you can save yourselves a lot of future trouble down the road if you make sure officers in your jurisdiction are doing the right things on the road now. Similarly, we know of no reason for anyone to have to carry documentation of their “essential service” status if officers are using good discretion in the first place, for all the many reasons we have mentioned above regarding the difficulties with criminal enforcement. Just something to consider.
Personal bond battles
As we mentioned in our last update, Gov. Abbott issued Executive Order No. GA-13 (aka EO-13) “relating to detention in county and municipal jails during the COVID-19 disaster” at least partly in response to litigation in Harris County, which is under a federal court order governing the release of misdemeanor offenders and is also involved in pending litigation over the pre-trial release of certain felony offenders. Those cases provide a vehicle for the plaintiffs to challenge the applicability of EO-13 in that county on the grounds that it conflicts with the standing federal court order. The Attorney General’s Office is attempting to intervene in the matter to defend the governor’s order and the situation will bear further watching, but please note that if you hear that a court in Harris County has invalidated some or all of EO-13 in that county, that does not necessarily apply outside the county (unless you also find yourself unlucky enough to be under a similar federal court order).
The state supreme court issued an eighth emergency order yesterday that tolled the deadline for the filing or service of any civil case until June 1, 2020, with some exceptions. Read that order here, and for a full rundown of all the court’s emergency orders, click here.
Another TDCAA seminar cancellation
In addition to the announcement in our previous update about the cancellation of our Civil Law Conference, which was scheduled for May 13–15 in San Antonio, we are also cancelling our Organized Crime Conference, which was scheduled for June 10–12 in Austin. We would typically wait a bit longer before making the call on a June event, but our host hotel is about to be leased out to the City of Austin for the isolation and self-quarantine of homeless people or others who cannot safely quarantine at home, so we thought we’d pull the plug on it now. (Other cities are starting to ink similar deals as well, by the way.) Registration payments will be returned automatically, but attendees should cancel their own hotel reservations. If you have a question about any other training event, please contact our Training Director, Brian Klas.
Victim services consultations by Zoom
Our Director of Victim Services, Jalayne Robinson, will no longer be traveling to prosecutor offices to do in-office consultations for the time being, but she is available to videoconference via Zoom (as well as answer questions and provide assistance via phone call or email). To set up a Zoom consultation, email Jalayne at [email protected].
Quotes of the Week
“There’s not really going to be a make-up for this. By and large, this is just a lot of lost revenue.”
—Bill Gilmer, head of UH’s Institute for Regional Forecasting, on the impending loss of sales tax revenue in Houston (and other localities) due to pandemic shut-downs.
“Quit being an ass. That’s my message, candidly.”
—Texas House Speaker Dennis Bonnen (R-Brazoria), when asked what his message is for those not taking the pandemic seriously.