On September 10, 2021, Williamson County Attorney Dee Hobbs requested an “expedited” ruling from Texas Attorney General Ken Paxton in response to his question of whether executive orders issued by Abbott in response to the COVID-19 pandemic should be “criminally enforceable,” including against public servants who violate the orders. Just over two years later – on September 14, 2023 – he received this reply.

In Attorney General Opinion numbered AC-0005, the Office of the Attorney General (OAG) found that executive orders issued by Gov. Greg Abbott relating to the COVID-19 pandemic do “carry the force and effect of law,” including criminal penalties associated with violating the mandates.

The opinion details the history of the issue in context to the Covid-19 disaster in which Governor Greg Abbott declared a state of disaster in Texas due to COVID-19 on March 13, 2020, subsequently renewing it each month until June 2023. It specifically references Executive Order GA-38, which stated “[n]o governmental entity, including a county, city, school district, and public health authority, and no governmental official may require any person to wear a face covering or to mandate that another person wear a face covering[.]” In the opinion, OAG discusses whether or not criminal punishments against governmental officials who violated Executive Order GA-38 by imposing requirements that individuals wear face masks are enforceable. The opinion ultimately concludes that “[p]ursuant to section 418.012 of the Government Code, executive orders issued by the Governor pursuant to his emergency powers under chapter 418 have the ‘force and effect of law’. The Penal Code defines ‘law’ to include a rule authorized by and lawfully adopted under a statute. A court is therefore likely to conclude that executive orders authorized by and lawfully adopted pursuant to the Governor’s statutory emergency powers constitute ‘laws’ for purposes of subsection 1.07(a)(30) of the Penal Code.”

The opinion goes on to say that “[t]he Texas Legislature has given Governor Abbott the authority to issue executive orders in times of emergencies, and those orders have the force of a law. Given this clearly expressed intent from the Legislature, a court is likely to conclude that executive orders authorized by and lawfully adopted pursuant to state statute constitute ‘laws’ for purposes of subsection 1.07(a)(30) of the Penal Code.”

It is unclear the implications of this decision beyond the scope of Covid-19 disaster declarations. Please note that Executive Order GA-38 is no longer in effect.