Now in the sixth consecutive month of the statewide disaster caused by the coronavirus, Governor Greg Abbott has exercised near-unchecked authority over the state, its citizens, and their exploits. He first declared a statewide disaster on March 13 and has renewed the pronouncement five times, with a sixth imminent next month.
Abbott derives this authority from the Texas Disaster Act of 1975, an over 100-page document that governs the state’s emergency powers.
Unsatisfied with its predecessor, the Texas Disaster Act of 1973, the 64th Legislature passed the new law to provide a more comprehensive blueprint for confronting disasters of all kinds.
One reason for the dissatisfaction was the scant authority at the local level to issue directives in response to natural disasters such as floods and other severe weather.
A 1980 interim report to the 67th Legislature, issued to analyze, among other things, the effectiveness of the new law in relation to the 1979 Galveston flood, reads, “With the designation of local officials as Disaster Directors/Coordinators and provision for delegation of their authority, the Governor may have cured the major problem experienced in the coastal flooding in July, 1979.”
It also touted the bill’s requirement that localities develop disaster preparedness plans.
Similarly, a Senate committee interim study in 1983 concluded that the law did not need any revision during that year’s session.
It was re-codified in 1987 and amended in 2005 to give local officials authority over the movement of individuals and the occupancy of properties.
The state’s disaster preparedness protocols date back to the 1950s when nuclear proliferation was the worry of the day. A draft-with-commentary emergency disaster bill from 1972, supplied by the Council of State Governments, which eventually became law a year later, emphasized the need for planning, which had been lacking previously.
The federal government had been goading state governments to implement disaster provisions to alleviate some of the former’s responsibility.
But up until this year, the full extent of the disaster laws on the books had rarely been used to such a degree, namely statewide rather than specific, isolated areas directly affected by severe weather.
The law defines a “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.”
A declaration is not limited to after the fact, but rather can be issued ahead of an “imminent threat.”
Epidemics had occurred in Texas before, such as the Spanish Flu 50 years before the passage of this law, and so the concept was not foreign to the law’s drafters.
The stated purposes of the law are to prepare for, and mitigate the effects of a disaster; facilitate quick recovery by the affected area and its inhabitants; “clarify and strengthen” the roles of the governor, state agencies, judicial branch, and local governments during a disaster; expedite cooperation within the state; and establish an emergency management system.
To avoid inadvertently limiting adjacent powers of the governor in the law explicitly intended to empower him, Section 418.002 states, “This law does not…(6) limit, modify, or abridge the authority of the governor to proclaim martial law or exercise any other powers vested in the governor under the constitution or laws of this state independent of or in conjunction with any provisions of this chapter.”
Historically, the governor possessed emergency powers, but largely out of the custom and desire that someone should hold such a responsibility. In an ironic similarity to the Federalist’s reservation of a written Bill of Rights, the writers of this law feared codifying authority would limit the governor’s powers elsewhere. And so, the above stipulation was included.
The 1972 bill draft, with comments about the vague powers they feared abridging, states, “There is some virtue in keeping them so because it is desirable that the Governor be able to do whatever is reasonable in meeting unforeseen circumstances.”
To avoid any ambiguity, it then emphasizes, “[S]ome might construe a comprehensive disaster statute as a complete law on the subject, which by its very nature could displace existing law. This provision negates any such construction.”
When declaring a disaster, the Texas Disaster Act grants the governor near-carte blanche discretion on when to declare a disaster and when to rescind an order. The law does require the order to expire after 30 days, but the governor can simply renew it at his discretion.
The only check on that authority is given to the legislature, but just as the coronavirus pandemic struck on an off-year, the legislature is not in session.
The only authority to convene not during the parameters of a regular session lies with the governor. And so exists an effective catch-22 wherein a governor must convene the legislature that aims to override his authority during an interim.
About this section, the 1972 commentary states, “Such provisions are included because the powers to be exercised during a disaster emergency are extraordinary ones and so should be confined to the periods intended by law.”
Going on the seventh month of the statewide disaster declarations, some in the state have voiced concern that the consecutive renewals surpass the reasonable duration of the law. Various parties have called for a special session including numerous legislators and even newly-elected Texas Republican Party Chair Allen West.
While the governor has not addressed the calls, a special session would present a logistical quandary regarding the spread of a virus that is the very reason for his disaster declaration.
Rep. Tony Tinderholt (R-Arlington) was the first publicly diagnosed case of coronavirus among Texas legislative members. Though the bout was harrowing, he has since recovered back to near full health. He did, however, express his steadfast concern over what he sees as executive overreach by Abbott.
But there is some historical precedent for this. The Texas Legislature convened off and on from January of 1919 to October of 1920 for the 36th Session right after Texas sustained it’s highest death total in the fall of 1918 due to the Spanish Influenza.
Nonetheless, Governor Abbott hasn’t indicated any desire to call a special session and instead remains locked in arms with the Disaster Act and the powers therein.
However, the powers vested in the governor by the law are still fairly vague. “The governor is responsible for meeting…the dangers to the state and people presented by disasters.”
“Executive orders, proclamations, and regulations have the force and effect of law,” it continues.
To aid in the administration of disaster response, the governor can convene an emergency management council with the power to deliberate and make recommendations for action to the Department of Public Safety. Governor Abbott has exercised this power by appointing his coronavirus strike force, comprised of state officials and private sector leaders.
This group has made recommendations to the governor on what restrictions to loosen and whom to allow to do business.
Part of the law from which the governor derives this power is Section 418.018, which provides that, “The governor may control ingress and egress to and from a disaster area and the movement of persons and the occupancy of premises in the area.”
“Ingress and egress” are legal terms for persons coming and going from premises. This section, specifically, was added in the 1987 amendments.
Perhaps the most notable example of Abbott’s use of this authority has been separating “essential” businesses from “nonessential” in the eyes of the state.
An incident that gained national attention was his shuttering of salons, which led to Dallas salon owner Shelley Luther’s seven-day jail sentence for violating the state and local closure orders. The governor then retroactively amended his statewide order to prohibit incarceration as punishment as the SCOTX ordered her release.
Another example includes the governor’s direction on mask mandates. After sparring with localities that mandated masks for all individuals, declaring them untenable, the governor revealed that localities could require businesses in their jurisdiction mandate their patrons wear masks. Abbott has since issued his own, more stringent, facemask requirement. Violators cannot be punished with imprisonment, only by a monetary fine.
One more ongoing example is the rather arbitrarily drawn line between “restaurants” and “bars.” Any business that makes 51 percent or more of its revenue from alcohol sales is prohibited from operating in-house services. This has led to a number of problems and two lawsuits accusing Abbott of applying the law unequally.
But in addition to the “ingress and egress” provision, the Texas Disaster Act also explicitly empowers the governor to “suspend or limit” the sale of, among other things like firearms, alcoholic beverages. Abbott has maintained that in a bar setting, social distancing is more difficult, compounded by the fact that alcohol impedes the “discipline” of individuals.
The governor, under the law, is able to suspend certain laws in order to facilitate swift response to the disaster. Abbott has used this early and often with the suspension of numerous regulations, such as trucking and medical licensing requirements.
An explanation for this provision is provided in the 1972 draft, stating, “They are of three basic kinds: suspension of normal routines during emergencies, operational measures, and measures for good order.”
“In times of emergency it is often necessary to make exceptions on an ad hoc basis and to improvise in order to forestall impending catastrophe or to ameliorate serious conditions that have suddenly arisen,” it continued.
Part of the criticism of Abbott’s executive orders is the extended nature of them. The above passage underscores the necessity of sudden adjustments to changing circumstances. But since the pandemic is stretching into its seventh month, opponents of Abbott’s orders say the “serious conditions” can no longer classify as having “suddenly arisen.”
While not directed at the governor himself, the Republican Party of Texas (RPT) sued the City of Houston and its Mayor Sylvester Turner for canceling their convention center contract at the last minute.
Turner derived his authority from the governor’s disaster declarations and claimed that the case increase dating back to Memorial Day was cause to breach the contract. Part of the RPT’s suit argued that there was no sudden case spike in the days leading up to the event that justified the cancelation.
While essentially a moot point, a federal judge sided with the RPT and specifically cited the familiar nature of the coronavirus threat, validating the RPT’s argument in that respect.
Furthermore, the law allows the suspension of state deadlines governing localities. An example of this is the appraisal review process by County Appraisal Districts. The governor issued a vague suspension which then the appraisal districts applied to their own deadlines and procedures, specifically prohibiting in-person hearings.
This, however, was backtracked a bit after Attorney General Ken Paxton issued an opinion stating taxpayers cannot be denied an in-person hearing.
Some appraisal districts adjusted course slightly, saying that the in-person protests will be held, just at a later date.
Elsewhere in the law, the governor is allowed to temporarily reassign state resources or personnel to assist with emergency services. Governor Abbott used this power a number of times, for example deploying the Texas National Guard to establish testing sites across the state.
Immediately following that provision is one that allows the governor to “commandeer or use any private property if [he] finds it necessary to cope with a disaster, subject to the compensation requirements of this chapter.” The State of Texas has used this, to set up emergency coronavirus care and testing facilities, but has almost without exception received local cooperation.
A minor provision of the law further establishes a requirement that presiding disaster officials — whether they are county judges or appointed public health officials — complete a disaster training course.
The Texas Disaster Act also explicitly addresses local powers. As local governments around the state struggle with tax revenue losses, some have opted to take advantage of a loophole in last session’s Senate Bill 2 that permits property tax increases up to eight percent without voter approval in a declared disaster area. This is disputed by state leaders but the pocketbook pressure is nonetheless being felt at all levels of government.
The path to some relief, however, is laid out in the disaster law, which states that localities should be reimbursed for costs incurred related to direct disaster responses. According to an official with the Texas Comptroller’s Office, that fund has $372,757.23 available.
Local governments can also receive federal aid to offset their losses — but the amount may not exceed 25 percent of the locality’s annual operating budget. The federal disaster fund has $9,815,881.37 available.
There’s also a forgiveness provision for the federal loan if the locality’s revenues are deemed “insufficient to meet its operating expenses.”
Furthermore, localities are required to establish some sort of emergency management director and set forth contingency plans for disaster. Hidden within this section (418.106) is a mandate that all localities’ emergency plans “provide for wage, price, and rent controls and other economic stabilization methods in the event of a disaster.”
Localities in Texas, such as Houston, have unilaterally halted evictions and established rental assistance funds for low-income and laid-off workers. While these decisions are made by the political subdivision, it is a mandatory part of their responsibilities listed within state code during a disaster.
The events of 2020 abruptly spurred the Texas Disaster Act of 1975, in its entirety, out of its lukewarm slumber and into wholesale deployment.
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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 watching and quoting Monty Python productions.