I thought we were going to take a break today?
We were, but now there’s breaking news that you need to know
about. The governor issued a new executive order today (June 26). We’ve
tried to keep the explanation below as clear and concise as possible, but
that’s becoming difficult as the orders become more complex.
What actions did the governor take today (June 26) regarding the
spread of COVID-19 in Texas and in my community?
He issued a new executive order. The new order, GA-28, supersedes GA-26, which we summarized
yesterday. Relative to previous orders, the new order does the following
of most significance to city residents: (1) closes bars; (2) reduces
maximum restaurant occupancy from 75 percent to 50 percent; and (3) limits
outdoor gatherings to 100 persons (other than those expressly allowed by the
order – see below), unless the mayor authorizes more.
Getting into specifics, the new order retains the core features
of the previous order:
-“Except as provided in this executive order or in the minimum
standard health protocols recommended by DSHS, found at www.dshs.texas.gov/coronavirus, people should not be in
groups larger than ten and should maintain six feet of social distancing from
those not in their group.”
-“In providing or obtaining services, every person (including
individuals, businesses, and other legal entities) should use good-faith
efforts and available resources to follow the minimum standard health protocols
recommended by DSHS.”
-“Nothing in this executive order or the DSHS minimum standards
precludes requiring a customer to follow additional hygiene measures when
obtaining services. Individuals are encouraged to wear appropriate face
coverings, but no jurisdiction can impose a civil or criminal penalty for
failure to wear a face covering.”
Beyond those, the order allows people to access various
businesses and take part in various activities. It adds the following
new restriction: “Every business establishment in Texas shall operate at
no more than 50 percent of the total listed occupancy of the
establishment…” But it then exempts various businesses, activities, and
outdoor events from the restriction. In fact, the exemptions are too voluminous
to paste in here.
The order also prohibits people from visiting bars, and an
updated, city-related provision regarding outdoor gatherings bears repeating:
“For any outdoor gathering in excess of 100 people, other than
those set forth above in paragraph numbers 1, 2, or 4, the gathering is
prohibited unless the mayor of the city in which the gathering is held, or
the county judge in the case of a gathering in an unincorporated area, approves
of the gathering, and such approval can be made subject to certain conditions
or restrictions not inconsistent with this executive order.”
[Note: according to correspondence between the League and
the governor’s office, an individual mask mandate would be allowed as a
condition of approving a gathering in excess of 100 people, but no penalty of
any type could be imposed on an individual who refuses to comply. What
other conditions would be allowed remains to be seen.]
The exemptions in GA-28’s paragraph numbers 1, 2, or 4 are
many. Pursuant to GA-28 #1, a county judge or mayor has no express
authority over the following outdoor gatherings:
1. any services listed by the U.S. Department of Homeland
Security’s Cybersecurity and Infrastructure Security Agency (CISA) in its
Guidance on the Essential Critical Infrastructure Workforce, Version 3.1 or any
2. religious services, including those conducted in churches,
congregations, and houses of worship;
3. child-care services;
4. youth camps, including but not limited to those defined as
such under Chapter 141 of the Texas Health and Safety Code, and including all
summer camps and other daytime and overnight camps for youths; and
5. recreational sports programs for youths and adults.
In other words, the above events can take place by right with no
Pursuant to GA-28 #4, amusement parks are subject to a 50
percent occupancy limit.
Pursuant to GA-28 #2 and #5 regarding outdoor gatherings, the
order is confusing. After much internal debate, the bottom line as
interpreted by League attorneys is this:
1. Any outdoor gathering in the city limits in excess of 100
people is prohibited by the order (GA-28 #5), unless a mayor allows it.
2. A mayor may allow a gathering in excess of 100 people in the
city limits, and may impose allowable conditions on the gathering (other than penalties for individuals who don’t wear a mask)(GA-28
#5). The best way to do that would probably be a written
3. The order’s 50 percent occupancy limit does not apply to
outdoor events, except those expressly listed in number 4 below (GA-18 #2).
4. A mayor has no control over the following, which can operate
at a maximum of 50 percent of the normal operating limits as determined by the
owner: (a) professional, collegiate, or similar sporting events; (b)
swimming pools; (c) water parks; (d) museums and libraries; (e) zoos,
aquariums, natural caverns, and similar facilities; and (f) rodeos and
Interested city officials should review the complicated new
order in its entirety to determine what’s open and with what
restrictions. As before, the best way for a city official to determine
what’s open and which guidelines apply is to visit the governor’s Open
Texas web page. That page indicates which activities are now
allowed according to the guidance document linked for each type of business or
The order continues to supersede local orders and prohibits
confinement in jail for a violation.
How does the new order (explained above) work with regard to
Fourth of July Celebrations?
Executive Order GA-28 provides that:
“For any outdoor gathering in excess of 100 people…the
gathering is prohibited unless the mayor of the city in which the gathering is
held, or the county judge in the case of a gathering in an unincorporated
area, approves of the gathering, and such approval can be made subject
to certain conditions or restrictions not inconsistent with this executive
[Note: according to correspondence between the League and
the governor's office, an individual mask mandate would be allowed as a
condition of approving a gathering in excess of 100 people, but no penalty
of any type could be imposed on an individual who refuses to comply. What
other conditions are allowed remains to be seen.]
The “outdoor events” guidance states verbatim that:
“Outdoor events, such as July 4 celebrations and other large
outdoor gatherings with estimated attendance of 100 or more, are permissible to
hold in Texas. The county judge or the mayor, as appropriate, in coordination
with the local public health authority, must give approval to such an outdoor
gathering or event prior to it being held.”
The following are the “local approval factors:”
-Local approval for large outdoor gatherings (those with an
estimated attendance exceeding 100 individuals) is appropriate in this instance
because a statewide standard is unable to take into account the various factors
needed to ensure such a gathering in varied locations is safe and will minimize
the spread of COVID-19. Further, business parity is not an issue at large outdoor
-In evaluating large gatherings (those with an estimated
attendance exceeding 100 individuals), the county judge or the mayor, as
applicable, should consider the following factors:
1. The overall number of projected attendees.
2. The likelihood of individuals over the age of 65 attending.
3. The density of the forum and the ability to ensure social
distancing of 6 feet between individuals.
4. The level of transmission in the county.
-Gatherings of less than 100 individuals may proceed consistent
with all the health protocols above without approval of the county judge, local
health authority, or mayor, as applicable.
What information does TML have for cities as
they start to prepare for the upcoming budget year?
TML has completed a special-edition, mid-year
fiscal conditions survey to help cities navigate the upcoming budget planning
process. With an unexpected public health crisis and an economic recession,
most cities will have to make difficult decisions over the next coming months.
Survey questions center on current budget shortfalls, as well as the
anticipated impact on next year budgets. The data is being compiled and
the results will be published in Monday’s Update email.
Where can I find archived issues of the TML Coronavirus Updates?
TML Coronavirus Updates are archived by date here and by subject here.