Texas Governor Abbott Signs New Order Aimed at Bringing Uniformity to the State’s COVID-19 Response

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On July 29, 2021, Governor Greg Abbott issued Executive Order GA-38, combining several existing COVID-19 executive orders for the stated purpose of promoting statewide uniformity and certainty in the state's COVID-19 response. To that end, the order sets forth the following five objectives: (1) ensure continued availability of timely information about COVID-19 testing and hospital bed capacity; (2) ensure vaccines continue to be voluntary and to protect against compelled disclosure of private COVID-19 health related information (i.e., “vaccine passports”); (3) ensure the ability to preserve livelihoods while protecting lives; (4) ensure no governmental entity can mandate masks; and (5) further ensure uniformity statewide.  Pursuant to each objective, the order mandates certain COVID-19 related requirements and overrides any and all conflicting state and local orders, ordinances, policies, regulations, rules or similar measures.

The statewide requirements, which took immediate effect, are as follows:

To ensure the timely information about COVID-19 testing and hospital bed capacity, Texas hospitals, excluding psychiatric hospitals, must submit hospital bed capacity information to the Texas Department of State Health Services (DSHS), which in turn must share that information with the U.S. Centers for Disease Control and Prevention (CDC). Additionally, any public or private entity using an FDA-approved test for diagnosing COVID-19 must submit daily reports of all tests (positive and negative) to DSHS which must share that information with the CDC.

To ensure vaccines continue to be voluntary, and to protect privacy, government entities are prohibited from compelling any individual to receive the COVID-19 vaccine.  Further, state agencies, political subdivisions, and any “public or private entity that is receiving, or will receive public funds through any means” (emphasis added), cannot enforce any requirements that require an individual to provide, as a condition of receiving any service or entering any place, documentation regarding that individual’s COVID-19 vaccine status. The order carves out an exception to this rule for nursing homes, state supported living centers, assisted living facilities, and long-term care facilities, which may continue to require documentation of a resident’s vaccination status.

As to the third objective, the order maintains that there are no COVID-19 related operating limits for any business or other establishment. The imposition of a conflicting limitation by a local government or entity or official will constitute a “failure to comply with” the order and is subject to a fine up to $1000.  The order, however, recommends safe practices and following DSHS health recommendations. It states that nursing homes and similar facilities should follow guidance from the Texas Health and Human Services Commission (HHSC); public schools should follow guidance from the Texas Education Agency; and jails should follow the guidance from the Texas Commission on Jail Standards.

To ensure no governmental entity can mandate masks, the order expressly prohibits any government entity, including a county, city, school district, or health authority, from requiring a person to wear a mask or face covering. The exceptions to this rule permit state-supported living facilities and government-owned or -operated hospitals to continue to implement appropriate policies regarding face coverings. In addition, jails acting consistent with the guidance from the Texas Commission on Jail Standards “may continue to use appropriate policies regarding the wearing of face coverings.” The imposition of a conflicting limitation to this rule by a local government or entity or official, as above, will constitute a “failure to comply with” the order and may result in a fine up to $1000.  Nothing in the order prohibits individuals from wearing a face covering if they choose to do so.

The order reiterates that it supersedes any conflicting order issued by local officials in response to the COVID-19 disaster and that local officials may not impose restrictions that conflict with it.  Additionally, it states that confinement in jail is not an available penalty for violation of the order. Moreover, any order or law created by local officials that permits confinement in jail for violating a COVID-19 related order is suspended.

Finally, the order recommends good hygiene, social distancing, and other mitigation practices, including voluntarily wearing masks or other face coverings over the nose and mouth whenever social distancing with non-household members is not feasible. It also encourages individuals to receive the COVID-19 vaccine and provides that the government will continue to use every reasonable means to provide the vaccine to any eligible person who chooses to be vaccinated; but maintains that the vaccine is not, and never will be, mandated by the state. The order recommends that all individuals, as well as businesses and other legal entities, utilize good faith compliance efforts and available resources to follow DSHS’s health recommendations.

Executive Order GA-38 will remain in effect and in full force unless and until it is modified, amended, rescinded or superseded by the governor.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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