87th LegislatureState SenateTexas Senate Moves to Curtail Emergency Powers for Local Government

Reforms authored by Sen. Bettencourt would explicitly exclude epidemics from local emergency management, and reduce violations from criminal to civil penalties.
May 4, 2021
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During last year’s response to the COVID-19 pandemic, many local government authorities sought to impose a variety of unprecedented restrictions on residents and act beyond the scope of their usual authority, prompting debate over the extent of their powers under Texas’ disaster declaration laws. 

In the state’s most populous county, Harris County Judge Lina Hidalgo announced last year that residents failing to comply with mask orders would face fines of up to $1,000, while the cities of Austin and San Antonio threatened residents with fines of $2,000 for non-compliance with local emergency orders. 

Other local authorities around the state imposed criminal penalties, such as in Laredo, where police arrested two women for offering beauty services out of their homes, and Tarrant County, where Judge Glen Whitely claimed that emergency powers allowed the county to commandeer private property.

Now, however, the Texas Senate has approved reform legislation that would amend the Texas Disaster Act of 1975 by clarifying that the definition of “disaster” explicitly excludes an epidemic or spread of communicable disease for purposes of local emergency management.

Authored by Sen. Paul Bettencourt (R-Houston), Senate Bill 1616 also proposes to reduce penalties for violations of local pandemic orders throughout the Communicable Disease and Prevention and Control Act and replaces criminal with civil penalties capped at $500. In addition, the bill limits the civil penalty for removing, altering, or destroying quarantine devices at $500.

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Texans should never be faced with criminal penalties for ‘mask’ violations, ever!” said Senator Bettencourt. 

Harris County and other jurisdictions also cited COVID-19 pandemic conditions last year in a push to release inmates from the county’s jail facilities, and Bettencourt explained that his bill would also serve to curtail such actions.

“It is just preposterous that many local governments were pushing to use emergency powers to release felony-charged offenders from county jails, like in Harris County, and at the same time even talking about everyday Texans being in jail with totally misguided criminal penalties with one notorious case in Dallas of a salon owner actually thrown in jail,” said Bettencourt.

Earlier in the session, Shelby Sterling of the Texas Public Policy Foundation provided written testimony in support of the bill to the Senate Committee on Health and Human Services noting that local government overreach had become a persistent problem during the pandemic.

“Americans enjoy certain fundamental protections, even during times of disaster,” wrote Sterling. “However, those protections appear to have been jeopardized by various local government actions.” 

Sterling also cited the 2020 ruling of federal Judge James C. Dever of North Carolina who stated, “There is no pandemic exception to the Constitution of the United States or the Free Exercise Clause of the First Amendment.”

Several representatives from local government entities registered opposition to the measure before the committee including those from the cities of Austin and Houston and Harris and Bexar counties. Registered opposition also came from the Texas Medical Association and the Texas chapter of the American Federation of Teachers union although neither group testified or provided a written statement.

Citing examples of local authorities who imposed curfews, prohibited more than two people in a car, and banned cycling during the pandemic, Bettencourt stated that none of those cases should allow for criminal penalties. 

“The bipartisan vote in the Texas Senate on SB 1616 is the first step to make sure that Texans are not faced with these type of penalties in the future.”

The final Senate vote of 19 to 11 Tuesday included two Democrats, Sens. Eddie Lucio Jr. (D-Brownsville) and Chuy Hinojosa (D-McAllen), who joined Republicans present to support the measure.  

The bill will now move to the Texas House.

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Holly Hansen

Holly Hansen

Holly Hansen is a freelance writer living in Harris County. Her former column, “All In Perspective” ran in The Georgetown Advocate, Jarrell Star Ledger, and The Hill Country News, and she has contributed to a variety of Texas digital media outlets. She graduated summa cum laude from the University of Central Florida with a degree in History, and in addition to writing about politics and policy, also writes about faith and culture.