87th LegislatureStatewide NewsA Preview of Emergency Powers-Related Bills Filed Ahead of the 87th Texas Legislature

Here's a look at legislation taking aim at Texas' emergency powers for this upcoming session.
January 4, 2021
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Alongside the public health apparatus and broader supply chain vulnerabilities, the pandemic has exposed Texas’ emergency power structure as out of date for the disastrous moment. Legislators have responded with a variety of proposed legislation aimed directly at the broad emergency powers granted to the governor.

Stemming from the acutely used Texas Disaster Act of 1975, Governor Abbott found himself awash this year in wide-ranging authority to control the ingress and egress of persons to and from places of business, regulate the sale of items such as alcohol and firearms, mandate face coverings, and issue recurring disaster declarations.

Texas statute has codified a virtual catch-22 wherein during an interim the only authority to convene the legislature lies with the governor, and in doing so during this pandemic the governor would risk constraining his own authority.

This inability for the legislature to convene during a period when orders affecting real policies are issued has affected numerous different areas like elections and the economy. But the root of it all comes back to disaster authority.

To head this off in the next session, legislators have filed a bevy of emergency powers-related bills.

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Aimed specifically at that catch-22, House Bill 665 by Rep. Brooks Landgraf (R-Odessa) would prohibit a disaster declaration, under which 75 percent or more of the state is affected, from being renewed past 60 days. Past that period, the governor must call a special session of the legislature and allow their directive.

Even more pointed is Rep. Steve Toth’s (R-The Woodlands) proposed constitutional amendment barring a statewide disaster declaration from extension beyond the initial 30 days. Thereafter, a special session must be called for legislative input. It also would explicitly codify in the Texas Constitution a provision reading, “No order or proclamation issued by the Governor may violate or suspend constitutional rights.”

Abbott, throughout the interim, balked at convening the legislature out of caution for spread of the coronavirus.

Part of his executive directives concerns business closings distinguished by “essential” and “non-essential” designations. House Bill 906 by Rep. Matt Krause (R-Fort Worth) would prohibit such a designation. This prohibition would apply to local officials as well.

Furthermore, another of Krause’s bills would limit the salaries of the governor and local officials alike that restrict business operations under disaster declarations.

Related to the essential or non-essential designation, Rep. Matt Shaheen’s (R-Plano) House Bill 525 would cement religious organizations as “essential businesses” at all times — declared disaster or not.

Establishments that have violated such closure orders were often reprimanded by the state’s body of regulatory agencies. The foremost example is the Texas Alcoholic Beverage Commission’s (TABC) crack down on bars and restaurants operating in violation of the state or local closure orders — often suspending licenses to sell alcohol.

House Bill 899 by Rep. Mayes Middleton (R-Wallisville) would outlaw such a reprimand, barring agencies from suspending operating licenses of businesses that violate emergency management rules.

Reps. Valoree Swanson (R-Spring), Briscoe Cain (R-Deer Park), and James White (R-Hillister) filed similar, but not identical bills that would restrict the governor’s ability to “suspend or limit” the sale of alcohol, firearms, and ammunition. White also filed the provision as a prospective constitutional amendment on which the public would have to vote if approved by the legislature.

Nonresident access and visitations to nursing homes have been restricted, at points entirely so, throughout the pandemic — an effort aimed at protecting a particularly vulnerable population. But severe consequences have accompanied the policy.

Ahead of this session, Sen. Lois Kolkhorst (R-Brenham) and Rep. James Frank (R-Wichita Falls) filed legislation to codify language that would ensconce the right of an elderly care or other special facility resident to have in-person access to at least one family member designated as an “essential caregiver.”

Upon gaveling in, the Texas legislature will be tackling huge tasks, including budgeting during shaky fiscal times, redistricting, and the litany of legislation that didn’t pass muster in 2019.

But the state’s emergency powers protocols will also find themselves under the microscope as the cracks in the system became unavoidably clear during this strange and destructive year.

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Brad Johnson

Brad Johnson is an Ohio native who graduated from the University of Cincinnati in 2017. He is an avid sports fan who most enjoys watching his favorite teams continue their title drought throughout his cognizant lifetime. In his free time, you may find Brad quoting Monty Python productions and trying to calculate the airspeed velocity of an unladen swallow.