The Texas Reopening Two-Step: The Governor First Pauses Reopening, Then Takes a Step Back with New Restrictions

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On June 26, 2020, Governor Greg Abbott issued Executive Order GA-28, restricting certain businesses and services in an effort to contain the spread of COVID-19.  This order was issued because of the substantial increases in COVID-19 positive cases, and increases in the COVID-19 positivity rate and related hospitalizations.  The positivity rate has soared above 10% in the last week. The governor had previously cautioned that additional business and activity restrictions would be necessary if the positivity rate increased beyond 10%. 

As noted in the press release, GA-28’s “targeted, measured directives . . . are based on links between certain types of businesses and services and the recent rise in positive cases throughout the state.”  And, while the order imposes several new occupancy restrictions, those restrictions do not apply to the following, as listed in the order:

  • services listed by the U.S. Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency (CISA) in its Guidance on the Essential Critical Infrastructure Workforce, Version 3.1 or any subsequent version;
  • religious services conducted in churches, congregations, and houses of worship;
  • local government operations, including county and municipal governmental operations relating to licensing (including marriage licenses), permitting, recordation, and document-filing services;
  • child-care services;
  • youth camps, including summer, daytime and overnight camps; and
  • recreational sports programs for youths and adults.

In addition, the following businesses may continue to operate at full capacity as long as they operate with at least six feet between work stations:

  • cosmetology salons, hair salons, barber shops, nail salons/shops;
  • massage establishments and similar facilities; and
  • other personal-care and beauty services such as tanning salons, tattoo studios, piercing studios, hair removal services, and hair loss treatment and growth services.

With limited exceptions, any business that does not fall into one of the above categories cannot operate at more than 50% percent of the establishment’s total listed occupancy.  “Establishment” refers to the business organization in question, not the building or facility in which the business may be located.  Also, as before, there are two different standards for determining occupancy levels.  Staff members are included in the occupancy headcounts for office and manufacturing services.  Staff are not included, however, in the headcount for other types of restricted businesses, including restaurants.

There are additional restrictions for certain types of businesses linked most closely to the COVID-19 spread:

  • All bars and similar establishments that receive more than 51% of their gross receipts from the sale of alcoholic beverages are required to close at 12:00 p.m. on June 26 but may remain open for delivery and take-out, including alcoholic beverages. 
  • Restaurants may remain open for dine-in service at 75% occupancy but, effective June 29, may not exceed 50% of the total listed indoor occupancy.  
  • Rafting and tubing businesses must close immediately.
  • Outdoor gatherings of 100 or more people require local government approval, with certain exceptions.

GA-28 is effective at noon on June 26 and remains in effect until modified, amended, rescinded, or superseded by the governor. Violations are punishable by up to a $1,000 fine and may be subject to regulatory enforcement.

The day before Governor Abbott issued GA-28, he announced that the state would pause any further phases to reopen because of recent increases in positive COVID-19 cases and hospitalizations. Businesses authorized to open under the previous phases may, however, “continue to operate at the designated occupancy levels and under the minimum standard health protocols provided by the Texas Department of State Health Services.” For more information about those previous phases and the applicable health protocols, please see this prior article.    

This reopening pause followed on the heels of the governor’s proclamation restricting certain outdoor activities. On June 23, Governor Abbott issued a proclamation that expands the ability of mayors and county judges to impose restrictions on outdoor gatherings in excess of 100 people. Previously, this restriction applied only to outdoor gatherings in excess of 500 people. Bexar and Travis Counties have already invoked their authority in this regard, and other counties are expected to soon do likewise.  The governor also, in tandem with this proclamation, directed the Texas Health and Human Services Commission to enact emergency rules to increase COVID-19 health and safety standards and procedures for child-care centers.

Shortly after issuing his June 23 proclamation, the governor issued Executive Order GA-27 as a precautionary step to help ensure there will be an ample supply of available hospital beds to treat COVID-19 patients.  GA-27 suspends all elective, hospital surgeries and procedures that are not immediately, medically necessary to correct a serious medical condition or save a life. The order initially is limited to hospitals in Bexar, Dallas, Harris and Travis counties, the state’s four largest counties, because these counties have experienced significant increases in COVID-19 hospitalizations. The governor retains the right to increase or reduce the number of counties subject to these restrictions in order to address surges in hospitalizations that may arise in other parts of the state. GA-27 is effective June 26 and remains in effect until modified, amended, rescinded, or superseded. Violations are punishable by up to a $1,000 fine and may be subject to regulatory enforcement.

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