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Texas Cities Remain Limited by Governor’s Order Over Pandemic Restrictions

We continue to live in confusing and unprecedented times amid the global COVID-19 pandemic. Over the past six months, we’ve seen a number of emergency orders and disaster declarations at both the local and state level, which are aimed at keeping Texans safe and helping to slow the spread of the coronavirus.

As discussed in previous blog posts, the Texas Government Code gives the Governor, and to a lesser extent Mayors, the power to regulate a laundry list of items during a declared disaster such as a pandemic. In the early months of the pandemic, it was difficult to keep up with the constantly changing regulations at the state, county, and local levels.

As we continue to slowly return to life as normal, the frequency of the orders has undoubtedly slowed down, but certain restrictions remain in place. Most Texans are probably aware that Governor Greg Abbott has issued orders concerning the maximum occupancy for various businesses as Texas continues to reopen amid the COVID-19 pandemic. Governor Abbott issued Executive Order GA-28 on June 26, 2020, which held (among other things) that restaurants may reopen with a capacity of up to 50% of their maximum occupancy. Generally speaking, cities and counties can make laws more restrictive than state law, but not less restrictive. However, GA-28 specifically suspends portions of the Texas Government Code and Texas Health and Safety Code to ensure that cities and counties do not impose more restrictive constraints which are inconsistent with the Governor’s Order.

“This executive order shall supersede 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 services allowed by this executive order, allows gatherings prohibited by this executive order, or expands the list or scope of services as set forth in this executive order.” GA-28.

So when does a local order restrict services allowed by the Governor’s executive order?

The City of Brownsville recently tried to restrict dine-in restaurants to 25% of their maximum occupancy through emergency orders. The Texas Attorney General’s office responded with a letter warning the Brownsville Mayor that the city cannot impose a more strict capacity limitation than what is contained in GA-28. Specifically, the Governor’s order allows restaurants to operate at up to 50% of their listed maximum occupancy, while the city’s order attempted to limit restaurants to 25% occupancy. The Attorney General’s letter asserted that the City’s order is invalid because it imposes restrictions which conflict with the Governor’s order.

According to the Attorney General’s office, “The Governor’s order establishes a ceiling on capacity at these restaurants, and it allows restaurants—not local governments—to decide whether to operate at a capacity that does not exceed this limitation.” While Attorney General’s informal letters are not binding law, they certainly should not be taken lightly. AG opinions are typically very persuasive to courts and judges. At the very least, the AG’s letter serves as a very real warning that a city which enacts regulations contradicting the Governor’s orders could face a lawsuit from the Attorney General’s office or others.

Please do not rely on this article as legal advice. We can tell you what the law is, but until we know the facts of your given situation, we cannot provide legal guidance. This website is for informational purposes and not for the purposes of providing legal advice. Information about our municipal law practice can be found here.

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