May 1, 2020
Once more: Does the governor’s “stay home/work home” order “expire” on Friday? Source Texas Municipal League
No, it does not. In spite of various media headlines about the “governor’s stay home order expiring on Friday (May 1),” his newest order (Executive Order GA-18) has similar stay home/work home language as previous orders:
“In accordance with guidance from DSHS Commissioner Dr. Hellerstedt, and to achieve the goals established by the President to reduce the spread of COVD-19, every person in Texas shall, except where necessary to provide or obtain essential services or reopened services, minimize social gatherings and minimize in-person contact with people who are not in the same household. People over the age of 65, however, are strongly encouraged to stay at home as much as possible; to maintain appropriate distance from any member of the household who has been out of the residence in the previous 14 days; and, if leaving the home, to implement social distancing and to practice good hygiene, environmental cleanliness, and sanitation.”
(Emphasis added.) The highlighted language means that Texans should stay home/work home, unless an exception applies (e.g., accessing essential services or activities, retail-to-go, re-opened businesses, or religious services).
Have additional Texas cities and counties been sued based on their COVID-19 orders?
Yes. State Representative Briscoe Cain (R – Deer Park) and another attorney, on behalf of several businesses (e.g., vape shops, a drag strip, an axe-throwing facility, hair salons, a gym, and a martial arts and yoga studio), two individuals, and all those “similarly situated” filed a “petition for writ of mandamus” with the Texas Supreme Court yesterday (April 29). The lawsuit comes on the heels of others filed by vape shops against the cities of McAllen, San Antonio, and Dallas.
A writ of mandamus is, in plain English, a request to the court to order government officials to stop some action that is alleged to be such an abuse of discretion that immediate, emergency action by the state’s highest court should be taken. Instead of going to a trial court, appealing to an appeals court, and then asking the Texas Supreme Court to review the case, the writ is filed directly with the Texas Supreme Court. That court can then decide quickly whether to issue a command that is binding on local officials.
According to the petition, the plaintiffs “seek a writ of mandamus and injunction to enjoin local authorities from enforcement of vague executive orders masquerading as Texas law, particularly when they are enforced unequally and arbitrarily…many Texans find themselves with the uneasy recognition that they have lost rights held inviolate only weeks ago, and are now threatened by fine and imprisonment for acts that are constitutionally protected.”
The petition alleges that the following local officials, through various enforcement actions that are representative of others across the state, violated the governor’s order, the Texas Disaster Act, and other laws:
Dallas County Judge Clay Jenkins
Dallas Mayor Eric Johnson
Kaufman County Chief Appraiser Sarah Curtis
Cleburne Mayor Scott Cain
Henderson County Judge McKinney
Smith County Judge Nathaniel Moran
Tarrant County Judge Glen Whitney
Hurst Mayor Henry Wilson
Abilene Mayor Anthony Williams
Snyder Mayor Tony Wofford
Scurry County Judge Don Hicks
San Antonio Mayor Ron Nirenberg
The petition also alleges that the governor’s order does not, in fact, order any business to close. Rather, the lawsuit claims, it provides only that people shall avoid those businesses. In addition, it claims that the Texas Disaster Act provisions authorizing a mayor or county judge to control ingress and egress to an area, and to regulate occupancy of premises, are arbitrary and violate state law and the Texas Constitution. As an example, the petition states that:
“Condom Sense is allowed to operate in Dallas and other jurisdictions, albeit by curbside service. The Court is invited and requested to take judicial notice that condoms are available at many grocery stores.”
The lawsuit claims the proper approach to deal with COVID-19 is to call an immediate special session of the legislature to deal with the emergency. Of course, courts in other states, such as one in Michigan just this week, have held that reasonable, emergency pandemic measures are allowable and generally don’t violate constitutional protections against due process and equal protection.
The League will monitor and report on the case as information becomes available.
Are there any updates on future federal legislation that provides funding to local governments?
Discussions continue in Congress about the general framework of another round of disaster relief legislation, this time to assist state and local governments facing significant budget shortfalls. Although no legislation has yet been filed, the National League of Cities (NLC) has engaged in discussions with the U.S. House of Representatives regarding a proposal for funding local governments. The basic structure of NLC’s draft proposal includes:
-$250 billion in direct funding for local governments nationwide.
-Of the $250 billion, $125 billion would be allocated to counties based on population and $125 billion would be allocated to cities, with 70 percent going directly to Community Development Block Grant (CDBG) entitlement cities using the existing funding formula, and the remaining 30 percent being sent to the governor to be used for all non-CDBG entitlement cities based on population.
-Funding used for all expenses related to COVID-19, including mitigating local government budget shortfalls that result from the economic impacts of COVID-19.
-Clarification that funding previously provided in the Coronavirus Relief Fund under the CARES Act can be used to mitigate local government budget shortfalls.
The NLC proposal would mean over $9 billion in funding for all Texas cities. It should be stressed, however, that at this point the above represents only one proposal discussed by NLC and congressional offices. Only time will tell if this type of a federal funding package gains political traction when Congress reconvenes.