What action has the governor taken with regard to the May 2, 2020, election?
Today, the governor issued a proclamation authorizing (but not requiring) all political subdivisions holding general or special elections on May 2, 2020, to postpone that election to the November 3, 2020, uniform election date. Please be advised that a postponement of your election does not happen automatically; the governing body of the political subdivision MUST take an official action for such a change to be effective. City officials should probably make the decision before the start of early voting on April 20, 2020.
At present, it is unclear what would happen to authority that statutorily expires in May. For example, what happens if a street maintenance sales tax reauthorization election is postponed? The League will seek direction from appropriate state offices.
The Elections Division of the Secretary of State's Office has issued Advisory 2020-12 - Actions for May 2, 2020, Uniform Election Date, which provides guidance to political subdivisions seeking to move their May 2, 2020, election date in accordance with the Governor's proclamation. The Elections Division also issued the following:
"We are in the middle of a public health crisis that is rapidly changing. Through this crisis, our primary concern is the health and safety of voters, election workers, and our local election officials. As the situation progresses, we stand ready to provide additional guidance regarding the upcoming elections. In the meantime, please continue to send us your questions so that we can revise and update our materials and guidance as necessary."
Christina Worrell Adkins
Legal Director - Elections Division
Office of the Texas Secretary of State
What is meant by the prohibition against "mass gatherings" in a local disaster declaration or order?
The answer to this question will depend on the language of the declaration or an ordered issued pursuant to the declaration. If the declaration or order states only that "mass gatherings" or "gatherings" of more than a certain number of people are prohibited, it would - according to CDC guidance - arguably apply only to conferences, festivals, parades, concerts, sporting events, weddings, and other types of assemblies. Without an express provision otherwise, it would not apply to close businesses such as bars and restaurants or grocery stores, and it would not prohibit people from going to work at large companies.
In most cases, the county's orders relating to the occupation of premises will control over a city's order. Texas Government Code Section 418.103 resolves many conflicts in relation to emergency management orders:
"(a) The governor shall determine which municipal corporations need emergency management programs of their own and shall recommend that they be established and maintained. The governor shall make the determinations on the basis of the municipality's disaster vulnerability and capability of response related to population size and concentration.
(b) The emergency management program of a county must be coordinated with the emergency management programs of municipalities situated in the county but does not apply in a municipality having its own emergency management program."
But, with regard to the occupancy of premises, the more specific provisions of Section 418.108 control:
"(f) The county judge or the mayor of a municipality may order the evacuation of all or part of the population from a stricken or threatened area under the jurisdiction and authority of the county judge or mayor if the county judge or mayor considers the action necessary for the preservation of life or other disaster mitigation, response, or recovery.
(g) The county judge or the mayor of a municipality may control ingress to and egress from a disaster area under the jurisdiction and authority of the county judge or mayor and control the movement of persons and the occupancy of premises in that area.
(h) For purposes of Subsections (f) and (g):
(1) the jurisdiction and authority of the county judge includes the incorporated and unincorporated areas of the county; and
(2) to the extent of a conflict between decisions of the county judge and the mayor, the decision of the county judge prevails."
Is a city required to declare a local state of disaster in order to be eligible for federal reimbursement of expenses?
Yes. Although the President and the Governor have issued an emergency declaration and a state of disaster, respectively, state regulations provide that the mayor must have declared a local state of disaster before a city may request disaster recovery assistance. 37 TAC §7.41. Thus, if a city anticipates requesting financial assistance in response to the COVID-19 pandemic (see below), the mayor should declare a state of local disaster and submit it as soon as possible to the governor, via the Texas Division of Emergency Management by email at firstname.lastname@example.org or facsimile at 512-424-5587. Requests for recovery assistance must be made by the mayor in writing to the governor through the Texas Division of Emergency Management. Id. §7.42. The request must indicate that the disaster is of such magnitude that local resources are inadequate to deal with it and the affected locality cannot recover without state and/or federal assistance. Id. Requests may be transmitted to the division via the Disaster Summary Online. Id. The Texas Department of Emergency Management has developed a resource for local officials on how to track and report costs associated with COVID-19.
Beyond the need to seek disaster recovery assistance, a declaration of local disaster also allows a city to exercise extraordinary emergency powers, to activate the appropriate recovery and rehabilitation aspects of all applicable local or interjurisdictional emergency management plans, and, in certain instances, to provide additional liability protection to employees, officers, or volunteer emergency workers. Tex. Gov't Code §§418.006; 418.185(e).
Are cities eligible for reimbursement from the federal government for expenses related to COVID-19?
On March 13, 2020, the President declared an emergency in response to the COVID-19 pandemic. As a result, local governments, including cities, are eligible to apply for federal assistance.
The declaration provides that eligible emergency protective measures taken to respond to the COVID-19 emergency at the direction or guidance of public health officials may be reimbursed under Category B of FEMA's public assistance program. More detailed information on the eligibility of expenses can be located in the FEMA Public Assistance Policy Guide.
Additionally, the Texas Department of Emergency Management has developed a resource for local officials on how to track and report costs associated with COVID-19. A city that plans on filing a claim for reimbursement of expenses with FEMA and/or the state should work with its city attorney to ensure any expenditures incurred are in accordance with federal and state regulations so as to reduce the likelihood of disallowance of such claim.
What information is available in relation to COVID-19 for water utilities?
The Texas Commission on Environmental Quality just shared the following for public water system operators.
TCEQ has prepared a centralized website to make resources and guidance readily available. A drinking water-related webpage also provides steps to minimize impacts to your system due to the COVID-19 outbreak. It contains up-to-date information concerning drinking water compliance, technical assistance, public water system guidance, and other available resources related to drinking water.
State and federal regulations have established treatment requirements for public water systems that prevent waterborne pathogens, such as viruses, from contaminating drinking water. COVID-19 is a type of virus that is particularly susceptible to disinfection and standard treatment and disinfection processes are expected to be effective. The TCEQ is emphasizing the importance of maintaining adequate disinfectant treatment at your public water system in accordance with TCEQ's rules (minimum 0.2 mg/L free chlorine or 0.5 mg/L chloramine measured as total chlorine).
If you have questions or need immediate assistance, please contact the TCEQ regional office that serves your county or call the TCEQ's emergency hotline at 1-888-777-3186.
- For technical assistance with treatment or repair, email at PLANDIST@tceq.texas.gov.
- For assistance with chemical compliance sampling, contact the Drinking Water Quality Team at PWSChem@tceq.texas.gov.
- For assistance with bacteriological monitoring or well disinfection, contact the Drinking Water Assessment Team at TCRData@tceq.texas.gov.
- For emergency equipment or supplies, please contact your local emergency manager (e.g., judge, mayor, or appointed emergency coordinator).
Additional assistance is also available through the Texas Water/Wastewater Agency Response Network (TXWARN - 866-989-9276 or email@example.com), whose mission is to support and promote statewide disaster response and mutual aid assistance for public and private water and wastewater utilities. This is a free service.
Information on state emergency management, including the state District Coordinator is through the Texas Division of Emergency Management and can be found at: https://tdem.texas.gov/field-response/.
Has the Texas comptroller responded to the COVID-19 emergency?
Yes, Texas Comptroller Glenn Hegar issued the following press release related to sales tax deadlines and the pandemic:
As the March 20 monthly sales tax due date approaches, Texas Comptroller Glenn Hegar reminds businesses to use the agency's online tools for tax filing and payment.
"We are committed to the health and safety of taxpayers, members of the community, agency employees and businesses throughout the state," Hegar said. "For that reason, we're urging businesses to make use of the agency's online tools to meet the March 20 deadline and remit taxes collected from Texans in February and held 'in trust' until now."
A suite of online tools to facilitate filing and on-time payment of taxes can be found on the agency's website, and a quick reference site has been set up in response to the COVID-19 emergency. For taxpayers who must visit Comptroller field offices, protocols have been put in place to ensure proper social distancing and protect the safety of both taxpayers and Comptroller employees.
For monthly filers, taxes collected in February must be remitted to this agency by March 20. The agency will in turn remit local sales taxes back to local communities that rely on that revenue to provide day-to-day and emergency services to local residents.
"I know this will be difficult for many businesses, especially small businesses, that are facing a severe downturn in customer activity," Hegar said. "These dollars, however, represent money collected from individual Texans, and Texans expect those dollars to be available to provide emergency health care and support other emergency operations during this difficult time.
"My office is charged with allocating local dollars back to communities fighting on the frontlines of this outbreak. They rely heavily on these dollars to operate hospitals, police, fire and other emergency services. I'm extremely sympathetic to our small businesses struggling through this pandemic, but I ask our partners in the business community to make a good-faith effort to pay taxes held in trust from before the outbreak began impacting their operations.
"This is a complex and rapidly evolving situation. Many of our fellow Texans are facing devastating economic conditions as bars, restaurants, retail outlets and other businesses make difficult staffing decisions. The economic impacts are currently the most visible, but a more pressing concern is simmering behind the economic concerns. A looming health emergency may strain our abilities to provide adequate care and emergency services to our fellow Texans. We must pull together to ensure we can meet the needs we will inevitably face. As part of that pulling together, I ask businesses to remit the taxes they collected from Texans by the established due date.
"We will examine each tax due date as it approaches, and I will keep lawmakers and all stakeholders informed as the agency evaluates rapidly changing conditions."
What actions can a city take to assist area hotels impacted by the COVID-19 pandemic?
The hotel industry has been one of the hardest hit due to social distancing precautions taken across the state and nationwide. In most cases, hotels have seen their occupancy rates drop dramatically over the several days. Some hotels are struggling to make payroll because of the lack of revenue.
One option that has been discussed amongst some city officials is to postpone the collection of local hotel taxes for a period of days with no interest or penalties. In a city operating under a local declaration of disaster, the mayor may exercise the powers granted to the governor in a disaster on an appropriate local scale. Tex. Gov't Code § 418.1015(b). Just as the governor has the legal authority to suspend the provisions of regulatory statutes concerning state business if strict compliance with those provisions would prevent or hinder the disaster response, some have argued that a mayor may act similarly for local regulations, like a local hotel occupancy tax ordinance. See Tex. Gov't Code § 418.016(a).
A city wishing to take any action that might assist local hotels should only do so after consultation with local legal counsel, and even then, only if that action is appropriate given the unique situation of each community.
What is Congress doing to provide assistance to local governments?
The National League of Cities sent a letter of request to Leader McConnell, Speaker Pelosi, Leader Schumer, and Leader McCarthy yesterday asking them to consider proposals to quickly and efficiently allocate funding to local governments, which are well-situated to deliver support to areas and communities in greatest need.
Additionally, the United States Senate is considering a House passed proposal (H.R. 6201), the "Families First Coronavirus Response Act," which would bring relief to workers and families. This measure, combined with a potential third bill, would likely result in hundreds of billions of dollars in additional funding for Coronavirus related effects. City officials who are supportive of these measures are encouraged to contact their U.S. Senator and Congressperson to voice that support.
How can I access archived editions of this and previous TML Coronavirus Updates?
All TML Coronavirus Updates: Questions and Answers are archived online at