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Mar 04

March 4, 2021 TML Coronavirus Update #175

Posted on March 4, 2021 at 10:37 AM by TML Staff

Urgent Updates


Does the governor’s new executive order contain anything related to mayoral approval of outdoor gatherings?


No. The newest order (GA-34) “supersedes” (i.e., takes the place of) previous orders, such as GA-32, requiring mayoral approval of certain outdoor gatherings. The newest order makes no mention of such a requirement. League staff has confirmed that the governor intended GA-34 to do away with the requirement that a mayor approve of outdoor gatherings, as provided in previous orders.


What authority does a city have to require pandemic mitigation measures on city property, in city facilities, or by city employees?


Executive Order GA-34 supersedes certain city regulatory authority (e.g., the authority to require city residents or businesses to adhere to pandemic mitigation measures, such as business closures, occupancy limits, or mask mandates). However, as with previous orders, GA-34 provides that “Nothing in this executive order precludes businesses or other establishments from requiring employees or customers to follow additional hygiene measures, including the wearing of a face covering.”


Merriam-Webster defines “establishment” as “a public or private institution.” A city is clearly a public institution, meaning it retains control over and may require pandemic mitigation measures on its property, in its facilities, and by its employees. Of course, GA-34 prohibits confinement in jail as a penalty, so the appropriate remedy for a citizen who violates such a requirement may be to escort them off the premises. For employees, the remedy may be disciplinary action.


Some cities’ rules regarding its own property will likely be tested in practice, which makes consultation with your city attorney imperative. Remember that a mayor can ask questions of the attorney general related to the pandemic orders. 


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


The letter from the governor’s office provides that the Open Meetings Act 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 governor’s staff assured the League that he intends to continue successively extending his 30-day COVID-19 disaster declaration because it is needed to ensure eligibility for federal assistance, among other things. 


That means the coinciding Open Meetings Act suspensions should continue for the foreseeable future. (Even if he decides to independently end the suspensions, his staff assures the League that he will give ample notice of that action.) 


On February 4, the governor’s office last extended the disaster declaration (and the Open Meetings Act suspensions) for another 30 days. That declaration expires March 5. But there’s no need to worry because we are confident he will renew it by then. If you’d like to confirm, look to the “Proclamation” page of (Click “News” at the top of the page, and then “Proclamation” on the right side of that page.)


While they don’t replicate the suspensions exactly, several bills have been filed thus far relating to videoconference and teleconferencing. For example:


S.B. 639 (Menéndez) – Open Meetings: would: (1) provide that, without regard to whether a member of the governmental body is participating in a meeting from a remote location by telephone conference call, a governmental body may allow a member of the public to speak at a meeting from a remote location by telephone conference call; (2) provide that, when a member of a governmental body loses audio or video during a videoconference meeting, the meeting may continue when a quorum of the body remain audible and visible to each other and, during the open portion of the meeting, to the public; (3) allow a meeting by videoconference so long as the presiding officer is present at a physical location open to the public where members of the public may observe and participate in the meeting; (4) set out the notice requirements for a videoconference meeting; and (5) provide that, without regard to whether a member of the governmental body is participating in a meeting from a remote location by videoconference call, a governmental body may allow a person to speak at a meeting from a remote location by videoconference call. (Companion bill is H.B. 2560 by Martinez.)


H.B. 1888 (Fierro) – Open Meetings: would: (1) authorize a governmental body to hold an open or closed meeting by conference call; (2) define “conference call” to mean a meeting held by telephone conference call, videoconference call, or telephone conference and videoconference call; (3) require that each part of a meeting held by conference call required to be open to the public shall: (a) be audible to the public; (b) be visible to the public if it is a videoconference call; and (c) have two-way communication with each participant; (4) provide that a member or employee of a governmental body may participate in a meeting by conference call only if the audio signal of the participant is heard live at the meeting; (5) provide that a member of a governmental body who participates in a meeting by conference call shall: (a) be counted as present at the meeting for all purposes; and (b) be considered absent from any portion of the meeting during which audio communication with the member is lost or disconnected, but allow the governmental body to continue the meeting if a quorum of the body continues to participate in the meeting; (6) provide that a governmental body may allow a member of the public to testify at a meeting by conference call; (7) provide that a meeting held by conference call is subject to the notice requirements applicable to other meetings and also must include certain instructions to the public; (8) require that a meeting held by conference call be recorded, and that the recording be made available to the public; and (9) require the Department of Information Resources by rule to specify minimum standards for the recording of a meeting held by conference call.


League staff summarizes each city-related bill in the Legislative Update Newsletter, which is included in your Friday “TML Exchange” email. The bills are categorized by subject matter. 


For the current legislative session, we’ve added the new subject heading of “Emergency Management.” Many pandemic-related bills will show up in that section, with some falling under other headings, such as Open Government, Public Safety, etc. Also, a complete list of bills filed to date by subject matter is updated each week. To view it, go to, hover over “policy” at the top of the page, and click on “legislative information.”


Further Updates


Does a city have liability to a person who contracts the virus at a city facility if the city doesn’t adopt pandemic mitigation measures, such as distancing or face covering requirements?


While hypothetical liability questions are notoriously difficult to answer, most city attorneys agree that the chance of a successful claim against a city is slim. Cities generally have immunity under state law, and it’s difficult to imagine many possible COVID-19 scenarios in which that immunity would be waived. The same goes for federal claims, which typically require an action by a city employee for liability to attach. 


Regardless, both state and federal officials have shown interest in adopting liability protections (presumably including protections for governmental entities). For instance, in Governor Abbott’s recent “State of the State” speech, he laid out several priority items. The key pandemic-related items were expanded broadband and liability protections for business. Whether any state or federal liability protections will ultimately be adopted is not yet known.


What’s the latest regarding future stimulus legislation?


Last Saturday (February 27), the United States House of Representatives passed H.R. 1319, the American Rescue Plan Act of 2021. The 594-page bill includes $350 billion in emergency relief for states and local governments, and funding for housing, education, food and nutrition, unemployment assistance, vaccines, COVID testing, and FEMA assistance. The bill has moved to the Senate, where leaders there have promised to take up the bill immediately.


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


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