Has the governor issued guidance with respect to his most recent
order relative to religious services?
Yes. The governor and the attorney general provided joint guidance yesterday
stating that houses of worship are essential services. His press release,
with a link to a guidance memo, is reproduced verbatim here:
Governor Greg Abbott and Attorney General Ken Paxton?today issued joint guidance
regarding the effect of Executive Order GA 14 on religious services conducted
in congregations and houses of worship.
“All Texans must work together to stop the spread of COVID-19,
and houses of worship face a particular challenge as we work to combat this pandemic,”
said Attorney General Paxton. “This guidance provides clear direction for
houses of worship to protect the health and safety of Texans as they continue
to hold religious services, exercise their religious liberty, and serve
their faith communities.”
The Executive Order GA 14 defines essential services
to include “religious services conducted in churches, congregations, and houses
of worship.” Orders given by state or local governments prohibiting people from
providing or obtaining certain services must ensure that the orders do not
violate the First Amendment of the United States Constitution, Article I
of the Texas Constitution, and the Texas Religious
Freedom Restoration Act, which protect the rights of Texans to freely
exercise their religion.
Has the governor or attorney general issued any further
clarifications on the governor’s latest executive order and how it interacts
with local orders?
Not beyond the religious information provided
above. However, the Hood County attorney requested an attorney general
opinion asking for clarification on the scope of local
orders. From the tone of the request, it appears the county attorney
thinks local orders go beyond a city’s or county’s authority:
“In the wake of the Covid-19 virus, Governor Greg Abbott issued
an executive order on March 19, 2020, and many counties and cities have issued
more far-reaching orders since that time. The question is whether the contents
of such orders are legal under the statute, Texas Constitution, and United
States Constitution. An order from Hood County, dated March 25, 2020, is
attached as Exhibit A. It is substantially similar to other orders issued in
counties such as Tarrant, Dallas, Travis, Bexar, and Harris.”
The county attorney goes on to ask several questions about local
authority. But the attorney general, citing litigation on those issues, is
declining to provide an opinion. As an example of such litigation, the
County Judge in the North Texas County of Collin issued a social distancing
order that appeared to be lax in its directives relative to a city in the
county. The Mayor of the City of McKinney, located in Collin County, issued a
more stringent order. Shortly thereafter, a local realtor sued the city,
claiming that the county order – even though less stringent – controls over any
city order. Earlier this week, a district court judge refused to issue a
temporary restraining order against the mayor’s order. The refusal served
as a victory for city authority, but how it interplays with the governor’s most
recent order remains unclear.
The attorney general indicates that he will answer one question
that the county attorney submitted, that being: “May local
governments commandeer private property under [Government Code Section]
418.108, when this authority is only vested in the governor under [Section]
What’s the answer? In the past, the League has taken the
position that a mayor may do so in certain, limited circumstances. That
reasoning was based on previous executive orders declaring hurricane
disasters. Those typically provided that "These mayors . . . shall serve as the Governor's designated agents in the administration and supervision of the Act, and may exercise the powers, on an appropriate local scale, granted the Governor therein."
But the governor’s most recent order doesn’t contain language
like that. In fact, it does the opposite: It actually suspends some
part (it doesn’t expressly say which part) of a mayor’s authority to issue
local disaster. We will report back when the attorney general issues the
Where can a city obtain guidance regarding whether a particular
provision in its local order is enforceable in light of the governor’s most
According to the attorney general’s office:
“Authorized local officials may now receive legal
advice from the Office of Attorney General concerning Coronavirus.
In light of the Governor’s recent disaster declaration, the
following local officials may now request legal advice from the Office of
the Attorney General concerning the coronavirus:
-the emergency management director designated under Section
418.1015 for the political subdivision;
-the county judge or a commissioner of a county subject to the
-the mayor of a municipality subject to the declaration.
Only these officials are authorized to request advice. Moreover,
legal advice may only be requested concerning issues related to disaster
mitigation, preparedness, response, and recovery concerning the coronavirus.
Authorized local officials may request such legal advice by sending an email to firstname.lastname@example.org, or by making
a web request online.”
It’s unclear whether the limiting language above means a mayor
can or can’t ask about whether provisions in a local order conflict with those
in the governor’s most recent order.
In any case, city officials should always remember that the city
attorney’s advice should always be the final word on advice related to your
city. If your city decides to submit a question, please copy email@example.com.
Are certain employees exempt from paid emergency sick leave and
emergency family and medical leave under the Families First Coronavirus
The Families First Coronavirus Response Act allows, but does not
require, an employer to exclude an employee who is a “healthcare provider” or
“emergency responder” from taking emergency paid sick leave and/or emergency
family and medical leave. 29 C.F.R. §826.30(c).
The definition of an “emergency responder” is expansive and
includes “anyone necessary for the provision of transport, care, healthcare,
comfort and nutrition of such patients, or others needed for the response to
COVID-19. This includes but is not limited to military or national guard, law
enforcement officers, correctional institution personnel, fire fighters,
emergency medical services personnel, physicians, nurses, public health
personnel, emergency medical technicians, paramedics, emergency management
personnel, 911 operators, child welfare workers and service providers, public
works personnel, and persons with skills or training in operating specialized
equipment or other skills needed to provide aid in a declared emergency, as
well as individuals who work for such facilities employing these individuals
and whose work is necessary to maintain the operation of the facility.”
Similarly, a health care provider includes, among others, anyone
employed at any hospital, health care center, clinic, a local health department
or agency, or a facility that performs laboratory or medical testing. Id.
§826.30(c)(1). Additionally, the governor and the mayor, as the highest
officials of their territories, may, as applicable, determine other categories
of emergency responders and health care providers, as necessary.
As mentioned above, a city is not required to exclude an
otherwise eligible health care provider or emergency responder from taking
emergency paid sick leave or emergency family and medical leave. The
Department of Labor notes that “the authority for employers to exempt emergency
responders is reflective of a balance struck by the FFCRA . . . [to] provide
for paid sick leave and expanded family and medical leave so employees will not
be forced to choose between their paychecks and the individual and public
health measures necessary to combat COVID-19 . . . [and that] providing paid
sick leave or expanded family and medical leave does not come at the expense of
fully staffing the necessary functions of society, including the functions of
A city that chooses to exclude otherwise eligible healthcare
providers and/or emergency responders from taking leave under the FFCRA, must
act affirmatively to do so. A city’s exercise of this option does not
impact the employee’s earned or accrued sick, personal, vacation or other
employer-provided leave under the city’s established policies.
Additionally, a city may not prevent an employee who is a health care
provider or emergency responder from taking accrued leave in accordance with
Where can I find archived issues of the TML Coronavirus Updates?
TML Coronavirus Updates are archived by date here and by subject here.