About two months ago, Governor Greg Abbott issued a disaster declaration for the State of Texas. This preliminary action allowed the state to divert resources to where they needed to be and begin to suspend burdensome regulations.
Six days later, on March 19, the Texas Secretary of State Health Services John Hellerstedt declared his own public health disaster.
Abbott paired this with an executive order limiting the size of social gatherings, temporarily closing schools, prohibiting visits to nursing homes and prisons, and directing the public to “avoid eating or drinking at bars, restaurants, and food courts, or visiting gyms.” Opinions on the governor’s authority to limit such things were divided, and Abbott himself referenced the emergency powers allotted by the Texas Disaster Act of 1975.
Under Hellerstedt’s declaration, Abbott said, the “state now has quarantine authority.”
On March 22, Abbott abstained from issuing a statewide shelter order, but on March 31 extended the social distancing guidelines through April. At the latter’s press conference, Abbott stated that local orders can implement further restrictions as they see fit — provided they mirror the state’s order on what constitutes an “essential service.”
In the days prior, some localities including the City of Austin, Travis County, Tarrant County, and Dallas County took advantage of the encouragement by state leadership and issued stricter orders. These stricter provisions included requiring the public to stay at home unless engaged in “essential activities” and mandating “non-essential” businesses cease operations.
Each order carries with it the enforcement authority of an up to $1,000 fine and/or up-to 180 days in jail for a violation — which were consistent with the governor’s order.
One locality that came under fire was McKinney which required religious services to be held remotely. They swiftly changed the order after First Liberty Institute challenged its legality.
On April 6, Abbott told the press “mitigation efforts were working,” as hospitalization data clarified and projections seriously decreased from earlier versions. One of the biggest factors in the state and local orders were to prevent overwhelming hospital capacity in one big wave. Texas has not come close to its available capacity yet.
Such trends have continued in the month since.
Just over 10 days thereafter, Abbott announced the creation of a task force to begin planning for reopening of Texas’ economy.
That plan was announced as “Phase 1” on April 27 wherein the governor would permit the reopening of all restaurants, movie theaters, malls, and retail stores at 25 percent capacity.
One specific extension some localities ordered were mask mandates. Austin and Travis County began requiring this on April 13 (which exempted homeless individuals), followed by Dallas County on April 16, and Harris County on April 22.
Port Isabel even implemented a mask order the week before the aforementioned three.
After Harris County’s mask order, Governor Abbott said that while wearing a mask is encouraged, localities cannot impose penalties for not wearing them.
Abbott let his executive order GA-14 — not considered a “stay at home” order or as explicitly restrictive as many local orders — expire at the end of April.
But enforcement at the local level had already commenced.
On the same day as Abbott’s creation of the reopening task force, reports of two Laredo women’s arrests in separate sting operations for operating in-home beauty services circulated. Records show they were let out of jail on “personal recognizance” bonds the same day of their arrest.
The Friday before his “Phase 1” announcement, the now nationally recognized salon owner Shelley Luther reopened her doors for business. That day, April 24, Luther received a cease and desist letter from Dallas County Judge Clay Jenkins.
After first hearing of Luther’s defiance, Abbott said the state had the authority to revoke her business license for violating the closure orders. In an April 27 press conference, Abbott was asked what the enforcement mechanisms were for the order(s).
He replied, “For all of these executive orders — for those before now and now — there’s several levels of enforcement: for one, there’s up to $1,000 fine and 180 days in jail; but the more primary enforcement would be the local level or regulatory level. And so for a lot of these businesses, they have an authorization to conduct business in the state of Texas and if they violate the law — which, this is now the law — they’re subject to losing their license to have an open business.”
Luther later said that Abbott and his team contacted her about strategies for allowing salons to reopen.
On April 28, Luther was served a temporary restraining order (TRO) which she violated by keeping her salon open. This resulted in a seven-day jail sentence and $7,000 fine issued by a Dallas district judge on May 5.
“As I have made clear through prior pronouncements, jailing Texans for non-compliance with executive orders should always be the last available option,” Abbott stated.
On May 7, Abbott announced he’d be retroactively amending — extending back to April 2 — his order to preclude jail time as a permitted penalty for violation of orders.
This was aimed at both Luther’s plight and the Laredo situation.
Luther was released that same day at the behest of the Texas Supreme Court after they decided to review her writ of habeas corpus.
Lt. Governor Dan Patrick told Fox News’ Ed Henry on May 8, “The executive orders that Governor Abbott put forward some time ago, we did not intend in the state to put anyone in jail. That was not the purpose.”
Furthermore, the same day Luther received the TRO, Montgomery County Judge Mark Keough told his community that according to his reading of the governor’s “Phase 1” reopening, businesses such as salons were not prohibited from reopening.
Hopkins County made a similar determination.
Keough stated that his interpretation of the order only requests the public to ‘minimize’ or ‘avoid’ contact with other individuals. He further added the order neither prohibits that nor the operation of businesses absent the permitted list of reopenings.
Montgomery County rescinded its “stay at home” order on April 22.
This statement by Keough sparked clarification from the governor and a response from the attorney general’s office stating that “anybody who visits these businesses could be prosecuted…and that implies that those businesses are closed.”
Keough then changed his approach and did not allow Montgomery County salons and gyms to reopen with “Phase 1.”
Similarly, on April 30, Paxton’s office sent a response to a clarification request from Brazoria County Judge Matt Sebesta, stating that “the Governor’s order is neither vague nor unenforceable, and local governments are prohibited from allowing businesses to reopen unless they are recognized as essential or reopened services under the Governor’s order.”
In another part of the state, Glen Rose gym owner Mark Goetz reopened his business along with “Phase 1.” His patrons were ticketed by the local police chief for violating the orders of the governor and the local authorities. Eventually, the citations were made warnings.
But after the governor and attorney general’s responses to the Luther debacle, Glen Rose City Manager Michael Leamons released a statement likening the change of tune by state leadership to “throwing local officials under the bus.”
Citing the attorney general’s response to Sebesta, Leamons questioned, “[H]ow, in good conscience, can Governor Abbott and Attorney General Paxton criticize a local official, like Judge Eric Moyé (the judge in Luther’s case), who is only enforcing the Governor’s orders in compliance with directives issued by the Attorney General’s office[?]”
Further adding to state vs local dynamic on these orders, the General Land Office superseded local orders, reopening Texas’ beaches on May 1.
On May 5, Abbott announced that salons would be permitted to reopen — with stipulations — on May 8. Gyms, he added, would be allowed to open on the 18th.
The Texas Supreme Court will be examining the question of these orders as they relate to civil liberties as the arguments from the City of Dallas were due Monday at 4 p.m.
But during the last couple of months, the state has abstained from issuing a strict shelter order, instead leaning on the localities to enforce as they see fit; reversed course with reopening plans, stating that the state orders supersede all local ones; informed localities the state’s order is “neither vague nor unenforceable” when asked for clarification; and reversed course again stating one of the listed enforcement prerogatives is no longer allowed.
Managing a nearly unprecedented pandemic is no easy feat, and Texas is not immune to the causes and effects.
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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 quoting Monty Python productions and trying to calculate the airspeed velocity of an unladen swallow.