Texas Governor's Executive Orders Take First Steps Toward Reopening of State

Texas Gov. Greg Abbott on April 17, 2020, issued a series of three Executive Orders relating to the COVID-19 crisis. The first, GA-15, relates to hospital capacity; the second, GA-16, relates to the reopening of select services in stages as part of the "Open Texas" movement; and the third, GA-17, establishes an advisory "Strike Force" as part of Gov. Abbott's initiative to "Open Texas." Failure to comply with any of the executive orders is an offense punishable by a fine not to exceed $1,000, confinement in jail for a term not to exceed 180 days or both a fine and confinement.

Executive Order GA-15: Hospitals

Until 11:59 p.m. on May 8, 2020, all surgeries and procedures that are not medically necessary to diagnose or correct a serious medical condition of, or to preserve the life of, a patient who, without timely performance of the procedure, would be at risk for serious adverse medical consequences or death as determined by the patient's physician, shall be postponed. This prohibition, however, does not apply in two situations:

1. if the procedure "would not deplete the hospital capacity or the personal protective equipment needed to cope with the COVID-19 disaster," or
2. if the healthcare facility has certified in writing to the Texas Health and Human Services Commission both 1) that it will reserve at least 25 percent of its hospital capacity for treatment of COVID-19 patients and 2) it will not request any personal protective equipment from any public source for the duration of the COVID-19 disaster

Executive Order GA-16: Reopening Retail

Effective immediately on April 17, 2020, and continuing through April 30, 2020, every person in Texas "shall, except where necessary to provide or obtain essential services or reopened services," minimize social gatherings and in-person contact with non-household members. "Essential Services" consists of every service and sector listed on the U.S. Department of Homeland Security's Cybersecurity and Infrastructure Security Agency (CISA) Guidance on the Essential Critical Infrastructure Workforce Version 2.0, as well as religious services conducted in places of worship. Businesses may apply to be listed as an "Essential Service" by requesting approval from the Texas Division of Emergency Management.

Starting April 24, "Reopened Services" includes retail services that are not essential but may be provided through pickup or delivery. Retail stores must comply with social distancing and cleanliness guidelines from the Texas Department of State Health Services (DSHS), and customers may not enter the stores themselves. Remote payment is encouraged, and items are to be provided through pickup, delivery by mail or delivery to the customer's doorstep.

In accordance with guidance from President Donald Trump and the Centers for Disease Control and Prevention (CDC), people shall avoid eating or drinking at bars and restaurants or visiting gyms, massage establishments, tattoo studios, piercing studios or cosmetology salons. The use of drive-thru, pickup or delivery options for food and drinks is allowed and highly encouraged.

Gyms, massage establishments, tattoo studios, piercing studios, cosmetology salons and dine-in bars and restaurants remain closed.

The order does not prohibit people from accessing essential or reopened services or engaging in essential daily activities such as physical activity like jogging and bicycling or going to the grocery store, gas station or state parks, so long as social distancing measures are maintained. People may not visit nursing homes, state-supported living centers, assisted living facilities or long-term care facilities unless to provide critical assistance. Such facilities are encouraged to follow infection control policies set forth by the Texas Health and Human Services Commission, including "minimizing the movement of staff between facilities whenever possible."

Schools are closed until the end of the 2019-2020 school year, but teachers and staff may return to schools to conduct remote video instruction and administrative duties under strict terms required by the Texas Education Agency. GA-16 supersedes any conflicting local order restricting essential services or reopened services. Social distancing requirements are still in place, and Executive Orders GA-09, GA-10, GA-11, GA-12, GA-13 and GA-15 remain in effect.

Executive Order GA-17: Creating a Strike Force to Open Texas

Also on April 17 and effective immediately, Gov. Abbott created the Governor's Strike Force to Open Texas (Strike Force) to advise him on "safely and strategically restarting and revitalizing all aspects of the Lone Star State—work, school, entertainment, and culture." The Strike Force is led by Southwestern Medical Foundation Board Chair James Huffines, with former Texas House of Representatives member Mike Toomey serving as chief operating officer (who will act as an employee of the Office of the Governor) and Lt. Gov. Dan Patrick, House Speaker Dennis Bonnen, Attorney General Ken Paxton and Comptroller Glenn Hegar serving as consulting members. DSHS Commissioner Dr. John Hellerstedt serves as chief medical officer and will be assisted by three chief medical advisors. The Strike Force also includes a number of public and private leaders who have been invited to serve on a Special Advisory Council.

Initially, the Strike Force is tasked with studying and making recommendations to Gov. Abbott on the following topics: "safely reopening" Texas businesses, providing necessary training and resources to position Texas workers and businesses to recover based on White House and CDC best practices, helping families who have been economically impacted by COVID-19, restoring healthcare services as soon as reasonably practicable in light of health and safety concerns, maximizing federal funding and other resources to recharge the Texas economy, spurring the economic recovery of small businesses, advancing economic growth in rural communities and revitalizing "key Texas institutions," which include those focused on workforce and economic development, education, healthcare, energy, infrastructure, arts and culture. The Strike Force will collaborate with local governments and the private sector to make recommendations.

The Strike Force is asked to make recommendations immediately and on an ongoing basis, in light of the April 30 expiration of Executive Order GA-16, in order to determine the types of businesses and services to reopen as well as restrictions on those businesses and services. The strike force will immediately begin providing input on potential additional openings of activities and services in Texas consistent with guidelines provided by the CDC. Gov. Abbott is scheduled to announce a revised plan for the state on April 27 based on the Strike Force's initial recommendations.

DISCLAIMER: Please note that the situation surrounding COVID-19 is evolving and that the subject matter discussed in these publications may change on a daily basis. Please contact your responsible Holland & Knight lawyer or the authors of this alert for timely advice.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.