Seyfarth Synopsis:  As COVID-19 cases in the state of Texas continue to surge, Governor Greg Abbott recently issued a statewide mandate requiring face coverings, a policy move he previously resisted.  The mandate includes several exemptions and imposes fines against individuals for violations.  Continue reading below for an overview of the relevant requirements and associated penalties for non-compliance.

Texas Governor Greg Abbott has long resisted issuing a statewide mandate requiring face coverings.  However, with COVID-19 cases in the state reaching all-time highs, Govern Abbott recently made an about-face.  As we previously reported, in late June 2020 Governor Abbott stated he approved of local ordinances requiring businesses to force their employees and customers to wear face coverings, including potential fines for businesses who did not comply.  Now, Governor Abbott has issued Executive Order GA-29 (“Order”) requiring every person in Texas to wear a face covering over the nose and mouth when inside a commercial entity or other building or space open to the public, or when in an outdoor public space, and whenever it is not feasible to maintain six feet of social distancing with individuals not from the same household. 

The statewide order does not apply to:

1. Individuals younger than 10;
2. Individuals with a medical condition or disability that prevents wearing a face covering;
3. Individuals consuming food or drinks or seated at a restaurant to eat or drink;
4. Individuals exercising or engaging in physical activity outdoors while maintaining a safe distance from other people not in the same household;
5. Individuals driving alone or with passengers who are part of the same household as the driver;
6. Individuals obtaining a service that requires temporary removal of the face covering for security surveillance, screening or a need for specific access to the face;
7. Individuals swimming in a pool, lake, or similar body of water;
8. Individuals voting, assisting a voter, serving as a poll watcher, or actively administering an election;
9. Individuals actively providing or obtaining access to religious worship;
10. Individuals giving a speech for a broadcast or an audience;
11. Individuals in a county with 20 or less active coronavirus cases where the county judge in said county has opted out of this face covering mandate.

The Order went into effect July 3, 2020.  While several counties are exempt from the Order, pursuant to exemption number 11 listed above (click here to access a complete list of exempt counties), in those counties that are not, individuals must comply with the face covering requirements to avoid civil penalties. 

Violators of the Order will be given a verbal or written warning first.  Subsequent violations, however, will result in fines not to exceed $250 per violation.  Local law enforcement and other local officials can and should enforce the Order.  However, the Order makes clear that no law enforcement or other official may detain, arrest, or confine in jail any person for violation of the Order or for related non-violent, non-felony offenses that are predicated on violation of the Order. Because of these limitations, law enforcement officials in some counties have already stated they will not be handing out fines. Under the Order, however, officials may enforce trespassing laws and remove violators at the request of a business establishment or other property owner.

The Order also amends Executive Order GA-28 which prohibited jurisdictions from imposing a civil or criminal penalty for failure to wear a face cover.  Such penalties are now permissible, so long as they are consistent with the Order.