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Apr 21

April 21, 2020 TML Coronavirus Update #27

Posted on April 21, 2020 at 5:36 PM by TML Staff

Urgent Updates


We’ve seen some cities issue orders that are either more restrictive or less restrictive than the governor’s orders. For example, some cities may wish to add a business to the list of essential services, while other cities may wish to expand the availability of all services, with certain restrictions. Can they do that?


As reported in previous updates, opinions vary. Because of that, the League’s attorneys will – as always – defer to each city attorney’s advice to their client. Yesterday’s (April 20) update stated that “a city may not define essential services differently than TDEM and the U.S. Department of Homeland Security.” 


Some city attorneys disagree with that black-and-white statement. Their position is that, by carefully parsing the preemptive language in GA-16, a city can – as a legal proposition – add to the TDEM/CISA list of essential services locally. That opinion is based on the following language:


“This executive order shall supersede any conflicting order issued by local officials in response to the COVD-19 disaster, but only to the extent that such a local order restricts essential services or reopened services allowed by this executive order or allows gatherings prohibited by this executive order. I hereby suspend Sections 418.1015(b) and 418.108 of the Texas Government Code, Chapter 81, Subchapter E of the Texas Health and Safety Code, and any other relevant statutes, to the extent necessary to ensure that local officials do not impose restrictions inconsistent with this executive order, provided that local officials may enforce this executive order as well as local restrictions that are consistent with this executive order.”


(Emphasis added.) In other words, the city attorneys argue that allowing a local business that is not on the TDEM/CISA list to re-open is not “restricting” essential services. Rather, it is expanding essential services. 


Of course, the order states that the statutes listed in it are suspended “to the extent necessary to ensure that local officials do not impose restrictions inconsistent with this executive order, provided that local officials may enforce this executive order as well as local restrictions that are consistent with this executive order.” 


(Emphasis added.) That language is difficult to decipher. If local action is “consistent” with the order, but it can’t be “inconsistent,” where does that leave cities? At a press conference this afternoon (April 21), the governor was asked about an order issued by the mayor of the City of Colleyville, and whether it was congruent with his order. The Colleyville order allows, for example: (1) retail services that are not “essential services” to open and make sales through in-person appointments, so long as distancing is followed; (2) gyms, massage establishments, and salons to re-open for one-on-one appointments only, with appropriate precautions; and (3) restaurants with patios can allow outside dining, so long as distancing is followed. 


In response to the question, the governor said that:


“I had the chance to read his [the mayor’s] proclamation. From everything that I can tell, what he wrote in the proclamation he made deference to my executive order, and was trying to write policies in a way that would parallel or be in agreement with my order. To the extent that there may be a strategy that he thinks is consistent with my order, my staff will talk to him and see what’s in agreement. If there’s something not in agreement, we will be happy to talk to him about it.”


The governor also mentioned that his Strike Force is reviewing which types of businesses can safely reopen and will have recommendations in a few days, which will lead to a new order on April 27. (Order GA-17 states that those recommendations should be made in time for the governor to issue a new order relating to business openings by May 30.)


What’s the bottom line? We are witnessing a rapidly-changing landscape with differing legal and political opinions. While we try to provide the basic information you need, these updates are not meant to be legal advice to any particular city. That’s why city officials should always base their ultimate decisions on the advice of their local legal counsel. That counsel is in a unique position to understand the goals of their city officials, explain the local costs and benefits of a particular course of action, and advise based on that and more local information. 


City attorneys should contact Scott Houston, TML general counsel, at 512-231-7464 or with questions or comments.


Will future stimulus legislation provide money for cities?


Despite intense lobbying from TML, the National League of Cities, and individual cities, the next round of stimulus legislation (sometimes referred to as “stimulus 3.5”) will be for around $484 billion in private relief, including $310 billion for the Small Business Administration's Paycheck Protection Program, $60 billion for small banks, credit unions, and similar financial institutions, $75 billion for hospitals, and $25 billion for testing.


One bit of good news is that stimulus 3.5 will likely include a provision allowing cities, counties, and states to use the $150 billion allocated to states, and to cities and counties over 500,000 population, in the earlier $2 trillion CARES Act to offset some of the lost revenue in their budgets. How smaller cities can access any of those funds remains unclear at the state level.


Many reports indicate that money for all cities might be available in a future package, and the President tweeted the following: “to State/Local Governments for lost revenues from COVID 19, much needed Infrastructure Investments for Bridges, Tunnels, Broadband, Tax Incentives for Restaurants, Entertainment, Sports, and Payroll Tax Cuts to increase Economic Growth.”


The seven leading organizations representing state and local governments at the federal level called on Congress in a press release to “immediately provide robust, flexible relief” to state and local governments as part an interim relief package for the COVID-19 pandemic.


Has the state issued additional guidance on houses of religious worship?


Yes, the governor and attorney general issued updated joint guidance regarding the effect of Order GA-16 on religious services conducted by congregations and houses of worship. According to an attorney general’s press release:


“It recommends strategies for houses of worship to effectively slow the spread of the Coronavirus (COVID-19) while serving their respective communities of faith. 


‘Government and faith communities throughout Texas must work together to care for our neighbors and slow the spread of COVID-19,’ said Attorney General Paxton. ‘This updated guidance provides clear direction for houses of worship to protect the health and safety of their congregations as they continue to hold religious services, exercise religious liberty and serve their faith communities.’ 


All emergency orders must comply with 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. Consistent with those protections, Executive Order GA-16 defines essential services to include ‘religious services conducted in churches, congregations, and houses of worship.’ Orders given by state or local governments, therefore, may not prohibit people from providing or obtaining those religious services. And importantly, under GA-16, local government may not close houses of worship.”  


Further Updates


Are there any university programs open to small, rural cities to help rebuild local economies?


Yes. The IC2 Institute is a “think-and-do-tank” at The University of Texas at Austin. IC2 formed the Regional Economic Recovery Team to help small, rural cities develop economic recovery plans. This work will begin this summer and continue throughout the year. To learn more about the institute and the recovery team, visit the IC2 Institute website. If you are interested in getting more information about how your city can participate in the program, email


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


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