87th LegislatureState HouseRevised Pandemic Disaster Act Heard by House Committee After Outcry From Conservatives

Burrows’ legislation has come under scrutiny from some conservatives who argued that the bill fails to establish any meaningful checks on the governor’s expansive authority under the Texas Disaster Act, Chapter 418 of the state’s government code.

New Changes in Committee Substitute

The legislation is moving forward with a committee substitute from Burrows, a version of the bill that was amended to address many of the criticisms with the original, though dissenters on the right say HB 3 is still inadequate.

Most notably, the new version would establish a “Pandemic Legislative Oversight Committee” that would have the authority to review and terminate any pandemic disaster declaration from the governor that has been in effect for more than 30 days.

At that time, the oversight committee could also review and terminate any specific policies issued through proclamations, orders, or rules under the pandemic disaster declaration.

The committee would be composed of 10 members, including the lieutenant governor and the speaker of the house acting as joint chairs of the committee, as well as four committee chairs from each chamber.

In order for the committee to override a pandemic disaster declaration, the joint chairs would need to convene and a majority of members would need to approve of the termination.

The committee would be permitted to meet through a video conference call, but would still need to be open to the public and pause the meeting if “the two-way video communication link with any member attending the meeting is disrupted at any time.”

Other notable changes in the committee substitute include:

• The replacement of a carryover from Chapter 418 that said the purpose of the act was to “strengthen” the role of the governor and agencies during a pandemic, so that it instead says the purpose is to “clarify” those roles.
• The addition of two new limitations that assert the proposed chapter does not “expand the authority granted to the governor under Chapter 418,” nor “affect the level of scrutiny review for constitutional violations.”
• The removal of a requirement for businesses to have made “a reasonable effort” to comply with federal and local laws, rules, ordinances, declarations, and proclamations in order to qualify for liability protections, though it would still require compliance with state regulations.
• The removal of a requirement that a “business or entity knew of the risk of exposure or potential exposure” in order to qualify for liability protections.
• The addition of a new section that prohibits some powers and duties of the governor listed under Chapter 418 from applying to pandemic disasters, including the ability to “limit the sale, dispensing, or transportation of alcoholic beverages, firearms, explosives, and combustibles.”
• The removal of a section that would have allowed the education commissioner to permit off-campus instruction for students in school districts that do not reopen in-person instruction.

Ongoing Criticism

Despite the objections with the original bill that the committee substitute attempts to address, HB 3 is still meeting opposition from some who argue that the legislation does little to provide a legislative check on the governor.

The limits of the check on the executive branch are inherent to the nature of the bill, which only addresses pandemics.

Consequently, broader limits to the governor’s authority granted under the Disaster Act are difficult if not impossible to include in the bill.

Burrows told the State Affairs Committee that the design was intentional so that the legislature could tackle a wide range of issues instead of attempting to address the COVID-19 pandemic through piecemeal legislation that he says may be harder to pass.

Though HB 3 focuses exclusively on pandemic disasters, Burrows said that he would be “more than happy” to address disaster powers more broadly in some other fashion.

In written testimony prepared for the hearing, Texas GOP Chairman Allen West said that the bill would “codify unconstitutional actions by an executive into law” and that it “relegates the legislative branch irrelevant and no longer a co-equal branch of government.”

“As well, there should not be any designated ‘committee’ that is empowered to speak above the collective legislative body to adjudicate executive powers,” wrote West, who compared the proposed oversight committee to the Foreign Intelligence Surveillance Act (FISA) courts established under the Patriot Act after 9/11.

The legislation is not without support from other conservative corners of Texas politics, though.

James Quintero, a policy director with the Texas Public Policy Foundation, appeared at the hearing on Thursday to testify in favor of the committee substitute of HB 3.

Quintero said that the bill provides a better balance of powers than under current law, especially with the proposed legislative oversight committee.

Whether or not HB 3 improves upon the status quo was something that Rep. Richard Peña Raymond (D-Laredo) brought up to one Texan who testified against the bill.

Last March, Raymond sent a letter to Abbott requesting that he call a special session so that the legislature could address the then-burgeoning pandemic.

Now he says that he wants to see legislation that would require the governor to call a special session under similar circumstances, but he noted the pragmatic obstacles to such legislation.

Raymond says that the Texas House of Representatives is unlikely to secure the 100 votes needed on such legislation to bypass the governor’s desk and become law, and if it is passed by the House with any fewer votes, Abbott would inevitably veto the bill.

All the same, Raymond said he committed to offering a floor amendment to HB 3 that would — in some form or fashion — allow the legislature to convene in a special session without a voluntary call from the governor.

An amendment to HB 3 would still likely only apply to pandemic disasters, though.

To that end, some critics including West are urging House members to develop companion legislation for Sen. Brian Birdwell’s proposed constitutional amendment that would require the legislature, not the governor, to renew major disaster declarations beyond the first 30 days.

But neither Burrows’ pandemic package nor Birdwell’s proposition has been introduced in the opposing chamber — something that has to be done in order for either to become law.