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Aug 10

August 10, 2020 TML Coronavirus Update #100

Posted on August 10, 2020 at 3:03 PM by TML Staff

Urgent Updates


Can you explain how the President’s latest executive orders affect cities?


We’ll try our best. On Saturday (August 8), the president issued four executive orders, three of which are relevant to cities. (The order relating to student loans won’t be discussed here. It brought back nightmares because it took your Update editor fifteen years to pay off his law school debt. Could’ve bought two Porsche 911 Turbos for the same price.) 


One observation: Many media reports and statements from some politicians don’t accurately reflect what’s in the orders. That means city officials should carefully review with their attorneys the two that could affect them as employers and regulators: (1) the payroll tax order; and (2) the eviction order. We’ve also included an explanation of the unemployment order. 


-Payroll Taxes: The president’s executive order on “payroll taxes” halts federal collection of the taxes from employers from September 1, 2020, until December 31, 2020, for workers who earn less than $4,000 every two weeks. “Payroll taxes” aren’t defined in the order, but they would typically mean federal withholding related to Medicare and Social Security.


The order doesn’t “forgive” the taxes. They will come due from the employer when the deferral period ends. Thus, an employer (including a city) may wish to continue withholding from employees the amounts due lest it later be on the hook for them. 


-Evictions: The president’s executive order on “evictions” doesn’t stop evictions. Rather, it directs Health and Human Services Secretary Alex Azar and Centers for Disease Control and Prevention Director Robert Redfield to “consider” whether an eviction ban is needed.


The Texas Supreme Court had a ban that expired in May. The CARES Act contained a prohibition on evictions that expired in July. A handful of cities and counties have bans in place, but the Texas attorney general opined that those are preempted by state law.  Those actions leave the eviction decision up to landlords acting through the court process, typically justice courts.  


-Unemployment Benefits: The president said that he is extending the unemployment “bonus” at $400 per week through the end of the year. That statement leaves out many details and raises many questions.


The $600 was part of a “booster fund” in the federal CARES Act. With some exceptions, that money was being added “on top of” state unemployment benefits. The $600 booster expired last Saturday because Congress hasn’t been able to agree on the terms of the next stimulus bill.


The president’s executive order attempts to allocate $44 billion to unemployment benefits from the Department of Homeland Security’s Disaster Relief Fund, which is typically used for hurricanes, tornadoes, and similar disasters. Most agree that only Congress can appropriate from that fund. Moreover, assuming no legal challenge ends the switch, the $44 billion will run out long before the end of the year. 


The president’s proposed benefit is at two-thirds of the CARES Act amount ($400 versus $600), and a state actually has to cover $100 of it to receive any federal money. The order suggests that states have plenty of money from the CARES Act’s Coronavirus Relieve Fund to cover that amount. State leaders in Texas haven’t yet decided whether they will participate.


What’s the latest with regard to the effect of the pandemic on public hearings, especially a city’s statutorily-required property tax hearing?


Some state legislators are having a tough time deciding what to do, but the answer is in state law for a city’s tax rate hearing. As it stands right now, Texas House committees aren’t allowing in-person hearings. That decision, made by Speaker Bonnen, may or may not stand permanently. 


The Texas Sunset Advisory Commission (a 12-member legislative committee that periodically reviews the functions and efficiencies of state agencies) met last week. According to The Texas Tribune, “[a]fter two hours, members couldn’t agree whether to let people testify in person or online, or choose between the two options. Their unpleasant meeting was a miniature version of the argument we’ve all been watching for months.”


Several weeks ago, the City of Austin asked the governor to suspend the following provision from Tax Code 26.06: “(a) A public hearing required by Section 26.05 may not be held before the fifth day after the date the notice of the public hearing is given. The hearing must be on a weekday that is not a public holiday. The hearing must be held inside the boundaries of the unit in a publicly owned building or, if a suitable publicly owned building is not available, in a suitable building to which the public normally has access. At the hearing, the governing body must afford adequate opportunity for proponents and opponents of the tax increase to present their views.”


The governor refused to suspend the requirement that the hearing be “in-person” in a public or suitable building. He presumably did so because he believes doing so would reduce public input on city tax rates. Austin also posed the question to the attorney general’s “disaster counsel” email. The attorney general’s office responded that they believe Section 26.06(a) requires an in-person hearing. Please note that the tax hearing in question is the one cities hold only if they are exceeding the no-new-revenue rate (formerly called the effective rate). 


That advice raises questions about any number of statutorily-required public hearings. The governor’s Open Meetings Act suspensions don’t mention any provision outside of the Act related to hearings. Many attorneys argue that, if the meeting itself may be conducted virtually, a hearing within that meeting may be as well. Others point out that the governor hasn’t expressly suspended any public hearing requirement. That answer may lie in a statute’s language relating to a required hearing. In other words, the Tax Code provision discussed above has very specific language.


Contrast that with, for example, zoning-related hearing requirements in Local Government Code Sections 211.007 and 211.0075. (The “zoning commission shall make a preliminary report and hold public hearings on that report…”) Or consider the budget hearing required by Section 102.006. (“The governing body of a municipality shall hold a public hearing on the proposed budget. Any person may attend and may participate in the hearing.”) Those sections don’t seem to restrict hearings from being held virtually, and we find no general requirement that in-person comment must be allowed when conducting a public hearing. That being said, many cities are conducting them in-person out of an abundance of caution.


The bottom line: As always, city officials should rely on their attorney’s advice. 


What additional information has the Secretary of State sent out regarding postponed elections?


The Secretary of State’s Elections Division sent “MASS EMAIL (CSO-3331) - Early Voting Requirements for November 3, 2020” today (August 10):


“Dear Election Officials:


On July 27, 2020, Governor Greg Abbott issued a proclamation suspending Section 85.001(a) of the Texas Election Code to expand the early voting period for the November 3, 2020 elections. We’ve received a number of questions related to this issue. We would like to clarify several things about the early voting requirements.


1. Early Voting Period: The early voting period will begin on Tuesday, October 13, 2020 and end on Friday, October 30, 2020. 


2. Hour Requirements when the County or City is the Early Voting Clerk: Per Section 85.005(a) of the Election Code, early voting by personal appearance shall be conducted on the weekdays of the early voting period and during the hours that the early voting clerk’s main business office is regularly open for business. The early voting clerk can order additional hours beyond the minimum requirements.

a. Hour Requirements when the County or City is NOT the early voting Clerk: Early voting by personal appearance must be conducted at the main early voting polling place for at least 8 hours each weekday of the early voting period that is not a legal state holiday. If the territory has fewer than 1,000 registered voters, voting shall be conducted at least three hours each day. (Sec. 85.005(b)). 


3. Extended Hour Requirements for County Early Voting Clerks

a. Extended Hours for Counties (not cities) with a population of 100,000 or greater:  Early voting in the general election for state and county officers must be conducted at the main early voting location for at least 12 hours on each weekday of the last week of the early voting period. (Sec. 85.005(c)). The requirement to conduct Saturday and Sunday voting at the main early voting location triggers Saturday/Sunday voting at any mandatory temporary branches in the county election established under Section 85.064(d).

b. Extended Hours for Counties (not cities) with a population under 100,000: If the county early voting clerk receives a written request (PDF) by at least 15 registered voters of the county for extended hours, early voting in a general election for state and county officers must be conducted at the main early voting location for at least 12 hours on each weekday of the last week of the early voting period. (Sec. 85.005(c)). The written request must be submitted in time to enable compliance with Section 85.067. (Secs. 85.005(c), 85.067(c)). For November, this deadline is October 20, 2020.

c. Extended Hours for Cities (even when the county is serving as the early voting clerk):  Per Section 85.005(d), early voting by personal appearance shall be conducted for at least 12 hours on two weekdays. If the county is conducting an election on the city’s behalf either as part of a contract for election services or a joint election agreement, the county must comply with this extended hour requirement.


4. Weekend Hours when the County is the Early Voting Clerk: The county election officer may order early voting on any Saturday or Sunday during the early voting period and may determine the hours for such Saturday or Sunday early voting. Notice of Saturday or Sunday early voting (PDF) must be posted continuously for at least 72 hours immediately preceding the first hour that voting will be conducted. (Sec. 85.007(c)). The notice shall be posted on the bulletin board used for posting notice of meetings of the commissioners court, as well as on the political subdivision’s website, if maintained. (Secs. 85.007(c), 85.007(d)).

a. Extended Hours for Counties with a population of 100,000 or greater:  Early voting in the general election for state and county officers must be conducted at the main early voting location for (1) at least 12 hours on the last Saturday of the early voting period, AND (2) at least 5 hours on the last Sunday of the early voting period. (Sec. 85.006(e)).

b. Extended Hours for Counties with a population under 100,000: If the early voting clerk receives a written request (PDF) by at least 15 registered voters of the county, early voting in a general election for state and county officers must be conducted at the main early voting location for (1) at least 12 hours on the last Saturday of the early voting period, and (2) at least 5 hours on the last Sunday of the early voting period. (Sec. 85.006(e)). The request for Saturday and Sunday hours must be received in time for the early voting clerk to comply with the 72-hour posting requirement before the start of early voting. (Secs. 85.006(e), 85.007(c)). For November, this deadline is October 20, 2020.


5. Weekend Hours when the County is NOT the early voting clerk: The authority ordering an election may order early voting at the main early voting location on any Saturday or Sunday during the early voting period. The authority ordering early voting may also determine the hours of weekend voting. Voting on ANY Saturday or Sunday must be included in the order and notice of election. The order and notice must include the dates and hours of Saturday or Sunday voting. (Secs. 85.006, 85.007). The election notice must be posted on the political subdivision’s website, if maintained. (Sec. 85.007). The political subdivision must have early voting on Saturday or Sunday if a written request (PDF) is received from at least 15 registered voters of the political subdivision in time to comply with the posting requirement. (Sec. 85.006(d)). The request must be submitted in time to be included in the order and notice of election. (Secs. 85.006, 85.007). NOTE: If you contract with the county for a unified joint early voting schedule, you must follow the county’s schedule; when their rules change their schedule, your schedule will change.


6. Temporary Branch Locations: Temporary branch polling places must remain open for each weekday of the early voting period that the main early voting polling place will be open. The temporary branch polling places must be open at least eight hours each day, unless the city or county is not serving as the early voting clerk and the territory holding the election has less than 1,000 registered voters, in which case the temporary branch polling places must be open for at least three hours each day. (Secs. 85.062, 85.064). For additional information regarding temporary branch locations, please review our Advisory No. 2019-20.


7. Amending the Election Order: We recommend amending the election order to reflect the changes to the early voting period.  This amendment does not need to occur by August 17, 2020 since early voting will occur on the dates dictated by the Governor’s Proclamation regardless of what the order states.  This action would be taken by the authority who originally ordered the election.


Thank you for the questions you have been sending us. We will be sending out a separate email regarding the hand delivery of mail ballots. Please let us know if you have any additional questions or concerns.  


Christina Worrell Adkins

Legal Director – Elections Division

Office of the Texas Secretary of State

1.800.252.VOTE (8683)


What is the status of the suspended Open Meetings Act provisions?


Last Friday (August 10), the governor’s office extended the Open Meetings Act suspensions. Previously, on March 16, the governor granted the office of the attorney general’s request for suspension of certain open meeting statutes.


The temporary suspension allows, among other things, for telephonic or videoconference meetings of governmental bodies that are accessible to the public in an effort to reduce in-person meetings that assemble large groups of people.


The guidance associated with the suspension provides that: “These suspensions are in effect until terminated by the office of the governor, or until the March 13, 2020, disaster declaration is lifted or expires.” The March 13 declaration has been extended for successive 30-day periods, including Friday’s extension for 30 days. That means the relevant open meetings laws remain suspended for at least another 30 days (or until affirmatively rescinded).


We can’t be certain, but it is highly likely that the governor will continue to repeatedly extend his declarations. We’ve heard from his staff that they have no immediate plans to rescind the suspensions, which are sensible and seem to be working well, but that can’t be guaranteed


Further Updates


What is a bar and what is a restaurant, and why does it matter?


Seems like a simple question, right? No, sir. Any establishment that is licensed by the Texas Alcoholic Beverage Commission (TABC) and for which alcohol sales account for more than half of its gross receipts is a “51 percent establishment.” In other words, it’s a “bar.” Or is it? 


One state representative recently gave the example of a burger restaurant, where a patron might buy a burger and two beers. Oftentimes, the beer will cost more than the food, but that doesn’t necessarily make the restaurant a bar.


Because of the confusion, TABC issued guidance to license holders:


Qualifying as a Restaurant Under GA-28:


Businesses that have a 51% designation with TABC or that have not traditionally been considered a restaurant by TABC may apply to qualify as a restaurant under GA-28 in order to provide dine-in services. Follow this process to apply and establish that your business derives less than 51% from the sale of alcoholic beverages.


The following information does not allow a business to circumvent the requirements in Executive Order GA-28 or any subsequent executive order.”


What is the comptroller’s topsy-turvy news on sales tax collections last month?


According to Texas Comptroller Glenn Hegar, state sales tax revenue totaled $2.98 billion in July, which is 4.3 percent more than in July 2019. His press release states in part that:


“The majority of July sales tax revenue is based on sales made in June and remitted to the agency in July. Widespread social distancing requirements were more relaxed across the state in June than in previous months.


‘State sales tax collections in July were better than expected, increasing despite the high unemployment due to the pandemic,’ Hegar said. ‘The increase was due to a surge in collections from the retail trade sector; receipts from other major sectors — including mining, construction, wholesale trade, services and restaurants — showed significant declines.’”


Has the governor made additional statements about school re-opening in the fall?


No, but confusion remains. The Texas Tribune reported on the issue last Friday (August 7).


What’s the latest from NLC related to congressional action on the next stimulus bill?


The National League of Cities explained the breakdown in negotiations last Friday (August 7):


“The negotiations over the next coronavirus relief package broke down Friday afternoon, with the two sides seemingly more dug-in.


After the two-hour meeting, House Speaker Nancy Pelosi (D – CA) told reporters, ‘I told them to come back when you're ready to do a bill.’


Treasury Secretary Steven Mnuchin said if they can reach agreement on state and local and on unemployment, ‘we can reach an overall deal. And if we can't, we won't.’


White House Chief of Staff Mark Meadows said that at the beginning Democrats wanted nearly a trillion dollars in spending for state and local governments. And today, Democrats, according to Meadows, have not moved.


Mnuchin said state and local is a ‘big issue and we are very far apart. He added: ‘The president is not going to do a deal that has a massive amount of money to bail out state and locals.’


Mnuchin and Meadows said President Donald Trump would be taking executive action this weekend on four items: an eviction moratorium, student loans, unemployment insurance, and a payroll tax cut.


[Editor’s Note: The President did, indeed, issue executive orders. See the questions above.]


Senate Minority Leader Charles Schumer (D – NY) said that Democrats would litigate if Trump tries to move ahead with executive actions.”


What’s the status of the 2020 TML Annual Conference and Exhibition?


The TML Board of Directors met virtually last Friday and concluded that it is impossible for the League to host the TML Annual Conference and Exhibition, scheduled for October 14-16 in Grapevine, as an in-person meeting. This difficult, but necessary decision was made for the health, safety, and comfort of our attendees, speakers, and exhibitors, and recognizes the effect that current state government restrictions would have on our ability to hold the conference.


The 2020 TML Annual Conference and Exhibition will now take place October 14-16 as a virtual event.


Registration will open on September 1. TML will share details about the format and program in the coming weeks.


Where can I find archived issues of the TML Coronavirus Updates?


TML Coronavirus Updates are archived by date here and by subject here.