87th LegislatureStatewide NewsThe Texas Pandemic Response Act: The Proposal to Codify Abbott’s COVID-19 Approach

Rep. Burrows filed a bill to create new guidelines for a pandemic response that solidifies the approach Gov. Abbott took to the COVID-19 pandemic, prompting criticism from some conservatives. Here’s a look at the debate and what’s inside.
March 3, 2021
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Going into Texas’ 87th Legislative Session, it was expected that lawmakers would attempt to tackle the issue of the COVID-19 pandemic in some fashion.

A bevy of bills have been filed aimed at directly reforming the Texas Disaster Act under Chapter 418 of the state’s government code, the source of the governor’s broadly applied authority during disasters, but House Bill (HB) 3 proposes a new chapter that would largely codify Governor Greg Abbott’s response to the pandemic.

Dubbed the “Texas Pandemic Response Act,” the bill would place a new chapter next to the Disaster Act that outlines how the government is to respond in the specific situation of a pandemic.

The legislation would still permit the government to implement wide-sweeping executive orders such as a mask mandate and forced business closures, but it also accentuates protections for religious liberty and the Second Amendment and addresses topics like property taxes and liability protections.

Filed by Rep. Dustin Burrows (R-Lubbock) last week, HB 3 has garnered much attention due to its low bill number — a sign that the legislation is a top priority for House Speaker Dade Phelan (R-Beaumont).

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Asked if the bill would have limited any of Abbott’s actions, Burrows told The Texan, “I know that there is nothing that would expand or broaden his ability to do anything, and of course the bill architecture is going to allow for healthy and robust debate on that.”

Criticisms of the Legislation

Burrows’ adamant defense that the legislation does not broaden executive authority comes as some outspoken conservative activists contend that parts of the bill’s text do expand the governor’s authority and even make state businesses subject to regulations from the Centers for Disease Control and Prevention (CDC).

In a recent newsletter, Jill Glover, the chair of the State Republican Executive Committee’s Legislative Priorities Committee, chided Burrows’ bill.

Urging support for legislation that would push back against executive overreach, such as recent bills proposed by Rep. Matt Schaefer (R-Tyler), Glover said, “The bad news on this front is a bill filed by one of our own Republicans, Representative Dustin Burrows.”

“HB 3 would actually extend executive powers and would give the federal government more power in our state by mandating that businesses comply with CDC recommendations,” wrote Glover. “If a business refuses to comply, it would lose its liability protections.”

The claim is in reference to the bill’s liability protections, which states that businesses protected from lawsuits must have “made a reasonable effort to comply with applicable federal, state, and local laws, rules, ordinances, declarations, and proclamations related to the pandemic disaster.”

Burrows said that the intent of the provisions is to shut down lawsuits — even those against businesses like Shelley Luther’s hair salon that violated Abbott’s executive order by reopening early.

“As people bring their concerns, we will obviously tighten up all the language in different places to make sure that there is no CDC interference,” said Burrows.

“To be honest with you, I think it’s a really unfair criticism for people who actually know me,” he added. “I promise you the final product is clear as can be that we’re not trying to ‘backdoor’ in anything. That’s just kind of laughable.”

But the bill has been criticized for more than its apparent requirement for businesses to comply with CDC regulations under the current draft.

Rep. Schaefer told The Texan, “HB 3 in its current form appears to expand the overall powers of the governor, affirms the governor’s unconstitutional power to suspend law, and violates the separation of powers requirement in the Texas constitution by affirming the governor’s ability to create and enforce a crime.” 

Burrows says that about 75 to 80 percent of his bill is pulled straight from Chapter 418, and from Schaefer’s perspective, that’s a substantial contributing factor to mounting criticisms. 

The state constitution gives the legislature the sole “power of suspending laws” in Texas, which Schaefer says is contradicted by Chapter 418 and thereby Burrows’ proposal, too.

“Separation of powers is enumerated in the Texas constitution. So I think we’re at a really critical point in our history here, where many Texans don’t understand these principles,” said Schaefer. “Some legislators are appearing to ignore them, or think they don’t matter, or some legislators are looking at what the governor has done and saying, ‘Well, I agree with him, so I’m going to let it slide.’”

“If you agree with [the governor], you can do the right thing in the wrong way,” said Schaefer. “Someday we may have a governor who decides that there’s a climate emergency or a gun violence emergency, and what might they do in those cases?”

Since HB 3 creates an entirely new chapter specific to pandemics, the bill can address a wider range of issues and still meet the required germaneness rules to be considered by the legislature.

The catch, though, is that the act only applies to a pandemic situation and not every other sort of disaster covered under Chapter 418 — arguably even a “climate emergency” or “gun violence emergency.”

Burrows stated this is deliberate because pandemics differ in nature from the other disasters specified in code in their statewide reach and lengthy duration.

In response to criticisms about how HB 3 leaves executive authority too powerful, Burrows said, “I think that we’ve tried to make a very narrow approach to what the governor’s powers will be.”

“And if people have good ideas to make sure we don’t declare a climate crisis — man, I’m open to it. Bring me your ideas, and let’s see if we can make them fit with the architecture of the bill,” said Burrows.

The structure of the proposed law is divided into four subchapters: general provisions of the chapter, the powers and duties of the governor, the role of local governments, and other miscellaneous provisions.

General Provisions

Purposes and Limitations

The similarity between Chapter 418 and HB 3 is especially apparent in the first subchapter as it relates to the purposes and limitations of the act.

Those sections are nearly identical to the corresponding sections in the Texas Disaster Act, though applied directly to a pandemic and not the broader list of disasters that the original law covers.

For instance, Burrows’ bill carries over a stated purpose to “clarify and strengthen the roles of the governor” and other positions in response to a pandemic, and also a limitation saying that the act does not “limit, modify, or abridge the authority of the governor to proclaim martial law.”

But there are several new subparagraphs in the section intended to clarify additional limits on the application of the act.

HB 3 adds that the purposes of the act are to “maintain employment levels for state residents to the extent possible” and to “protect and preserve individual liberties guaranteed under the United States Constitution and the Texas Constitution.”

Notably, a purpose in the original disaster act to encourage state agencies and local governments to cooperate with the Federal Emergency Management Agency was cut out altogether.

Added to the limitations, the Texas Pandemic Response Act also states that the chapter does not “grant the governor authority to enact law” — though it’s worth noting that HB 3 keeps language in the next subchapter that states an order from the governor “has the force and effect of law.”

Burrows’ bill also adds a limitation to clarify Second Amendment protections under HB 3, saying that the new act does not “authorize any person to prohibit or restrict the business operations of a firearms or ammunition manufacturer, distributor, wholesaler, supplier, or retailer or a sport shooting range.”

Liability Protections

Liability protections are also included in this section for businesses that operated during the pandemic and entities that provided goods or services to help address the pandemic, such as manufacturers that modified their operations to produce personal protective equipment.

Those protections are backdated to begin on March 13, 2020, when Abbott declared a state of disaster for all counties in Texas.

“The intent of the bill is to shut down lawsuits,” said Burrows. “That was language that was brought to me by business groups [. . .] and we’re gonna tighten it up to close down as many lawsuits as possible. That’s the entire goal. There is no other reason to put anything in there than to stop businesses from the fear of lawsuits.”

The Governor’s Role

The role of the governor as outlined in HB 3 is strikingly similar to the governor’s role as defined in the Texas Disaster Act, though not without some textual differences.

In declaring the responsibility of the governor, Burrows’ bill adds a new line stating, “The governor may only exercise authority granted by this chapter to address a pandemic disaster.”

The next line is also not found in Chapter 418 and has been read by some as a broadening of the governor’s authority.

While Chapter 418 plainly states that, “Under this chapter, the governor may issue executive orders, proclamations, and regulations and amend or rescind them,” HB 3 adds that the governor may take those actions “to further the purposes of this chapter.”

Asked if the addition was meant to clarify that the governor has the authority to issue wide-sweeping executive orders like those signed by Governor Abbott under the pretense of Chapter 418, Burrows said that the bill “was not drafted with that in mind.”

Per both the Texas Disaster Act and the proposed Pandemic Response Act, the governor could issue a disaster declaration that must be renewed every 30 days and would be able to suspend certain rules and regulations to address the pandemic disaster.

Likewise, the legislature has the authority to terminate the declaration, but the bill provides no new mechanisms by which the legislature can meet without a call from the governor during the interim of the regular sessions every odd year — something that both Republicans and Democrats have filed bills to change. 

And like the original act, Burrows’ would permit the governor to control “ingress and egress to and from” areas under the declared disaster, as well as “suspend or limit the sale, dispensing, or transportation of alcoholic beverages, explosives, and combustibles.”

Not included in that list, though, is the sale, dispensing, or transportation of firearms and ammunition — a notable difference from Chapter 418.

Burrows’ bill also adds a section noting that “actions taken under a declared state of pandemic disaster must satisfy the religious freedom protections” in state and federal code.

Role of Local Government

Preemption

In the early months of the panic at the pandemic, state officials sent mixed messages to local officials about who had the authority to impose what regulations, such as Abbott initially saying that penalties could not be imposed for mask mandates and then saying that counties could force businesses to require masks.

Ultimately, the main approach that Abbott has taken is to issue executive orders that supersede all conflicting local regulations and tie the hands of municipal and county executives from imposing stricter rules.

Burrows’ bill codifies that policy so that any orders issued by the governor or the Department of State Health Services automatically override any inconsistent local orders or rules.

Elections

One of the controversies in Texas ahead of the 2020 election was the attempt of the interim Harris County Clerk, Chris Hollins, to send out applications for mail ballots to more than 2.7 million voters in the county.

The measure was opposed by the secretary of state, the attorney general, and ultimately the Texas Supreme Court.

The Pandemic Response Act would prevent similar situations from occurring by requiring any political subdivision to receive approval from the secretary of state before “seeking to alter, in response to a pandemic disaster, any voting standard, practice, or procedure in a manner not otherwise expressly authorized by the Election Code.”

Property Taxes

Last session, Burrows was the chief House proponent of the Senate Bill (SB) 2 property tax reform, and that focus has carried over this session in one section of the bill.

One section in HB 3 would prohibit cities and counties from raising property taxes during a tax year in which businesses were closed through pandemic emergency order.

While aimed directly at “normal” tax increases permitted under SB 2’s limits, it could also be used as recourse for localities that take advantage of the disaster loophole which some cities and counties have used to exceed the newly established limits.

Miscellaneous Provisions

Criminal Penalty

After Shelley Luther was sentenced to seven days in jail by a Dallas district judge for violating Abbott’s executive order by reopening her salon, Abbott announced that he would retroactively amend his orders to preclude the penalty of jail time.

Under Chapter 418, a violation of an emergency management plan “may prescribe a punishment for the offense but may not prescribe a fine that exceeds $1,000 or confinement in jail for a term that exceeds 180 days.”

The proposed legislation would still include a maximum $1,000 fine for violations of a pandemic disaster order, but does not provide the option of confinement.

Education

Amidst the COVID-19 pandemic, there was much debate over in-person or virtual school instruction, with some public health officials pushing for the latter in contrast with openings by the governor and many teachers refusing to return to the classroom.

In his legislation, Burrows seeks to provide another option for parents who want — or need, because of their job — their children to receive in-person instruction.

Under the act, the commissioner of education would have the discretion to “approve instructional programs provided off-campus [. . .] in which participation by a student of a district or charter school shall be counted for purposes of determining average daily attendance.”

The school districts that remain closed would have to compensate the alternate program or the education commissioner would reimburse it with funds deducted from the district.

Burrows said that schools that want to keep students under their instruction “can avoid this by just having their doors open.”

Next Steps

In order to be put on the books next to the Texas Disaster Act, HB 3 will need to go through committees and be passed by the House and Senate.

It has yet to be filed in the Senate, but on Monday, Burrows’ House bill was referred to the State Affairs Committee that is chaired by Rep. Chris Paddie (R-Marshall).

Burrows emphasized that he wants a “full and robust debate” about amendments on his bill, and noted he would encourage “legislators who are paying attention to this policy area [. . .] to visit with the governor’s office to have their vantage point, and talk to them about what they did and why they did it and what their considerations were, so they can fully digest that.”

Brad Johnson contributed to this report.

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Daniel Friend

Daniel Friend is a reporter for The Texan. He participated in a Great Books program at Azusa Pacific University and graduated in 2019 with a degree in Political Science. He has studied C.S. Lewis’s science fiction trilogy and in his spare time you might find him writing his own novel partly inspired by the series.