Has the attorney general issued further guidance regarding
Executive Order GA-18 and how it supersedes local orders? In other words,
can I now get my hair cut?
He has. But that much-needed haircut? Still can’t get one
as of now.
The Texas Department of Licensing and Regulation issued guidance
today (May 1) regarding barbershop, cosmetology salon, nail salon, esthetician
salon, massage establishment, and laser hair establishment closures:
“Yesterday, the Texas Attorney General's Office released a guidance letter to address questions
relating to Governor Abbott's Executive Order GA-18. Barbershops, cosmetology
salons (including nail and esthetician), massage establishments, and laser hair
establishments must remain closed until further notice. The Governor's order overrides
conflicting local and county orders.”
The guidance letter referenced by TDLR has clarifying language
that is applicable well beyond haircuts about how Executive Order GA-18 should be interpreted,
and the attorney general’s advice generally tracks what’s been in previous TML
Passages in the letter of particular interest are reprinted here
-Your question concerns numerous public reports suggesting that
the Governor’s order is vague and unenforceable. As explained below, the
Governor’s order is neither vague nor unenforceable, and local governments
are prohibited from allowing businesses to reopen unless they are recognized as
essential or reopened services under the Governor’s order.
-Executive Order GA-18 expressly provides that it supersedes
“any conflicting order issued by local officials” to the extent such order
“expands the list of essential services or the list or scope of reopened
services as set forth in this executive order.” Exec. Order GA-18 at
5. A local order that purports to allow businesses that are neither
essential services nor reopened services under GA-18 to reopen would “expand
the list of essential services or the list or scope of reopened
services.” Therefore, such an order would be superseded by GA-18 and would
be invalid. See Exec. Order GA-18 at 5; see
also Tex. Const. art. XI, § 5(a) (providing that local
regulation may not be inconsistent with the State Constitution or laws); Tex.
Gov’t Code § 418.012 (providing that the Governor’s executive orders “have the
force and effect of law”); City of Laredo, Tex. v. Laredo Merchants
Assoc., 550 S.W.3d 586, 592 (Tex. 2018) (recognizing municipal ordinances may
not be inconsistent with the Constitution or state law); Tex. Att’y Gen. Op.
KP-0296 (2020) (concluding municipal and county officials lack emergency
authority to regulate or restrict the sale of firearms).
How does a city calculate the percentage of dine-in occupancy
for restaurants re-opened by Executive Order GA-18?
It’s hard to tell. Executive Order GA-18 provides in relevant part that:
“‘Reopened services’ shall consist of the following to the
extent they are not already ‘essential services:’
b) Dine-in restaurant services, for restaurants that operate
at up to 25 percent of the total listed occupancy of the restaurant;
provided, however, that (a) this applies only to restaurants that have less
than 51 percent of their gross receipts from the sale of alcoholic beverages
and are therefore not required to post the 51 percent sign required by Texas
law as determined by the Texas Alcoholic Beverage Commission, and (b) valet
services are prohibited except for vehicles with placards or plates for
f) For Texas counties that have filed with DSHS, and are in
compliance with, the requisite attestation form promulgated by DSHS regarding
five or fewer cases of COVID- 19, those in-store retail services, dine-in
restaurant services, movie theaters, shopping malls, and museums and
libraries, as otherwise defined and limited above, may operate at up to 50
percent (as opposed to 25 percent) of the total listed occupancy.”
City officials across the state have experienced differing
interpretations about how to calculate the 25 or 50 percent occupancy. For
example, should restaurant employees be considered in that number? Most
cities had worked it out locally by cross-referencing a restaurant’s certificate
However, yesterday (April 30), the governor’s office issued
a two-sentence letter to the Texas Restaurant Association. It
“As you know, Governor Abbott’s executive order GA-18 limits the
occupancy of restaurants for dine-in restaurant services to 25% of the total
listed occupancy. This limitation is for the number of restaurant customers
in the restaurant, and does not include essential employees of the restaurant.”
Many cities have adopted building and fire codes, and they issue
certificates of occupancy to businesses based on those codes. While each
city’s C.O. can be different, many provide that the total listed occupancy
includes all people, including staff. How to ultimately interpret the
percentage is up to each city based on the advice of local legal counsel.
Has the comptroller released recent tax data that indicates the
impact of Coronavirus on state revenues?
Yes, the Texas comptroller issued the following today (May 1):
“Texas Comptroller Glenn Hegar today said state sales tax
revenue totaled $2.58 billion in April, 9.3 percent less than in April 2019,
the steepest decline since January 2010.
The majority of April sales tax revenue is based on sales made
in March and remitted to the agency in April. Widespread social distancing
requirements were not in place across much of the state until late March,
meaning the impact of those measures affected only a portion of sales tax
remittances in April. Next month’s remittances likely will show steeper
declines compared to a year ago, as the effects of both the shuttering of
businesses related to COVID-19 and plummeting oil prices were manifest
‘State sales tax collections declined as a result of efforts to
stem the spread of COVID-19 through business closures, crowd limits and
stay-at-home orders adopted in the state, as well as a precipitous drop in
worldwide demand for oil,’ Hegar said. ‘The steepest declines in tax
remittances were from businesses most quickly and dramatically affected by
social distancing: restaurants, performing arts venues, movie theaters, theme
parks and fitness centers, as well as department stores and boutique retail
shops. However, those losses were, to a degree, offset by increases from
big-box retailers, grocery stores and online vendors. Remittances from oil- and
gas-related sectors also fell significantly as oil and gas exploration and
production companies slashed capital spending in response to the crash in oil
Sales tax is the largest source of state funding for the state
budget, accounting for 57 percent of all tax collections. It can also be a
lagging indicator of economic slowdowns. The recession associated with the
financial crisis more than a decade ago began in December 2007 and lasted 18
months, but Texas did not see significant sales tax declines until early 2009.
While the effect on sales taxes from the current economic contraction has been
more immediate, the impact of rising unemployment and contracting economic
activity in many parts of the state’s economy, including oil and natural gas
exploration and production, likely will act as a drag on sales tax revenue for
The effects of the March economic slowdown and falling oil
prices were more evident in other sources of revenue in April 2020. Texas
collected the following revenue from other major taxes:
-Motor vehicle sales and rental taxes — $164 million, down 45
percent from April 2019, the largest monthly drop on record in data going back
-Motor fuel taxes — $284 million, down 12 percent from April
2019, the steepest drop since 1991;
-Natural gas production tax — $67 million, down 48 percent from
-Oil production tax — $191 million, down 45 percent from April
-Hotel occupancy tax — $24 million, down 63 percent from April
2019, the deepest drop in data going back to 1990; and
-Alcoholic beverage taxes — $57 million, down 55 percent from
April 2019. Declines were driven by mixed beverage gross receipts and sales
taxes, both of which were down more than 58 percent. Excise taxes on beer were
up 16 percent from April 2019, while wine excise taxes were up 9 percent from
For details on all monthly collections, visit the Comptroller's Monthly State Revenue Watch. For an extensive
history of tax policy developments and fees since 1972, visit his updated Sources of Revenue publication.”
What does the state revenue forecast above portend for city
Though sales taxes make up a somewhat smaller share of the
typical city budget (around 25-28 percent versus 57 percent for the state),
it’s still going to be a big hit for city budgets and the ability to pay for
needed services, such as first responders. As the press release notes, the
numbers reflect only a portion of the time we’ve been under a stay home/work
home order. The next round of figures may give us a better indication of
the trouble ahead.
Has anyone compiled programs related to assisting Texans as they
comply with the stay at home order, especially as it relates to housing
Yes, the University of Texas has prepared a web page to track policies adopted by the
federal government, State of Texas, and local jurisdictions to help Texas
residents stay in their homes during the pandemic and accompanying financial
crisis. This site will also include policy best practices and opportunities to
increase Texans’ housing stability.
Is there new guidance related to federal loan programs for small
Yes. Yesterday (April 30), the Federal Reserve Board announced
the expansion of the Main Street Lending Program. The Main Street Lending
Program is designed to support small and medium-sized businesses that were in
sound financial condition before the COVID-19 pandemic. After receiving public
feedback, the Federal Reserve expanded the loan options available to businesses
and increased the maximum size of businesses that are eligible for support.
Now, businesses with up to 15,000 employees or $5 billion in annual revenue are
eligible for loans under the program. Additionally, the minimum loan size for
certain loans was lowered to $500,000.
City officials are encouraged to pass along information related
to the Main Street Lending Program to their local business leaders. The Federal
Reserve’s press release contains links to guidance and frequently
Has the governor announced new guidance for unemployment
Yes, the governor issues the following press release yesterday
“Governor Greg Abbott today announced that the Texas Workforce
Commission (TWC) has issued new guidance to unemployment claimants concerning
their eligibility for unemployment benefits should they choose not to return to
work at this time due to COVID-19. Under this guidance, Texans can continue to
receive unemployment benefits throughout the COVID-19 response if they choose
not to return to work for certain reasons as specified by TWC.
‘As the Lone Star State begins the process of safely and
strategically opening the economy, our top priority is protecting the health
and safety of all Texans—especially those who are most vulnerable to COVID-19,’
said Governor Abbott. ‘This flexibility in the unemployment benefit process
will help ensure that Texans with certain health and safety concerns will not
be penalized for choosing not to return to work.’
Each unemployment insurance claim is currently evaluated on
an individual basis. However, because of the COVID-19 emergency, the following
are reasons benefits would be granted if the individual refused suitable work.
Reason for refusal:
-At High Risk: People 65 years or older are at a higher risk for
getting very sick from COVID-19.
-Household member at high risk: People 65 years or older are at
a higher risk of getting very sick from COVID-19.
-Diagnosed with COVID: The individual has tested positive for
COVID-19 by a source authorized by the State of Texas and is not recovered.
-Family member with COVID: Anybody in the household has tested
positive for COVID-19 by a source authorized by the State of Texas and is not
recovered and 14 days have not yet passed.
-Quarantined: Individual is currently in 14-day quarantine due
to close contact exposure to COVID-19.
-Child care: Child’s school or daycare closed and no
alternatives are available.
-Any other situation will be subject to a case by case review by
TWC based on individual circumstances.”
What is the General Land Office’s official beach opening
The GLO issued the following to the City of Galveston yesterday
“On March 17, 2020, the GLO gave approval for local governments
to close beaches due to COVID-19. The basis for the GLO approval was the
Governor’s State of Disaster proclamation on March 13, 2020. The proclamation
was followed by Executive Order GA-16, which will expire at 11:59 p.m. on April
30, 2020. The Governor’s Office has also issued Executive Order GA-18, which
encourages outdoor activities so long as necessary precautions are maintained
to minimize the transmission of COVID-19 and to minimize in-person contact with
people who are not in the same household.
Therefore, the GLO is rescinding its approval for local
governments to close beaches due to COVID-19, effective April 30, 2020, at
11:59 p.m. The GLO understands that conditions may change, and local
governments are required to contact the GLO for prior approval for any future
closures of the beach to vehicles or pedestrians, closures of beach access
points, time limitations, or restrictions on particular uses or activities on
the beach. Local governments should also encourage the public to follow the
recommended individual health protocols outlined by the Texas Department of
Health and Human Services at the following link: https://www.dshs.state.tx.us/coronavirus/opentexas.aspx.“
Is the attorney general’s office offering assistance with
disseminative information about price-gouging during the pandemic?
Yes, the attorney general’s office has created a COVID-19 consumer issues page. The page contains helpful
information about scams, price gouging, and how to report one of those.
Where can I find archived issues of the TML Coronavirus Updates?
TML Coronavirus Updates are archived by date here and by subject here