Texas Governor Issues 3 New Executive Orders to Gradually Reopen State

Texas Gov. Greg Abbott held a press conference on April 27, 2020, during which he announced the first phase of Texas' plan to safely and strategically open the state while minimizing the spread of COVID-19. The governor issued three Executive Orders as part of Phase I. The first order, GA-18, relates to the expanded reopening of services; the second, GA-19, relates to healthcare professionals and hospital capacity; and the third, GA-20, relates to expanding travel. Gov. Abbott also released Texans Helping Texans: The Governor's Report to Open Texas and announced minimum standard health protocols released by the Texas Department of State Health Services (DSHS) for all businesses and individuals to follow. Failure to comply with any of the Executive Orders is an offense punishable by a fine not to exceed $1,000, confinement in jail for a term not to exceed 180 days or both a fine and confinement.

Executive Order GA-18: Reopened Businesses and Services

Effective immediately and until 11:59 p.m. on May 15, 2020, every person in Texas shall, except where necessary to provide or obtain essential services or reopened services, minimize social gatherings and in-person contact with persons not in the same household. The Stay at Home Order, however, will expire on April 30, 2020. People over age 65 are "strongly encouraged" to stay at home as much as possible, to maintain appropriate distance from any member of the household who has been out of the residence in the previous 14 days and to practice social distancing.

"Essential services" shall consist of everything listed by the U.S. Department of Homeland Security (DHS) in its Guidance on the Essential Critical Infrastructure Workforce, Version 3.0 or any subsequent version, plus religious services conducted in churches, congregations and houses of worship. Other essential services may be added to this list with the approval of the Texas Division of Emergency Management (TDEM).

"Reopened Services" include the following:

1. Retail services that may be provided through pickup, delivery by mail or delivery to the customer's doorstep
2. Starting at 12:01 a.m. on Friday, May 1, 2020:

a) in-store retail services, for retail establishments that operate at up to 25 percent of the total listed occupancy of the retail establishment

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 (i) 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 (ii) valet services are prohibited except for vehicles with placards or plates for disabled parking

c) movie theaters that operate at up to 25 percent of the total listed occupancy of any individual theater for any screening

d) shopping malls that operate at up to 25 percent of the total listed occupancy of the shopping mall; provided, however, that within shopping malls, the food court dining areas, play areas, and interactive displays and settings must remain closed

e) museums and libraries that operate at up to 25 percent of the total listed occupancy; provided, however, that (i) local public museums and local public libraries may so operate only if permitted by the local government, and (ii) any components of museums or libraries that have interactive functions or exhibits, including child play areas, must remain closed

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, 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

g) services provided by an individual working alone in an office

h) golf course operations

i) local government operations, including county and municipal governmental operations relating to permitting, recordation and document-filing services, as determined by the local government

j) such additional services as may be enumerated by future executive orders or proclamations by the governor

Gov. Abbott reserves the right to withdraw permission to reopen from any county or counties, after consultation with medical professionals and based on factors such as an increase in the transmission of COVID-19 or in the amount of COVID-19-related hospitalizations or fatalities.

In providing or obtaining essential or reopened services, people and businesses should continue to follow the minimum standard health protocols recommended by DSHS and work from home, if possible. Face coverings are encouraged, but no jurisdiction can impose a civil or criminal penalty for failure to wear a face covering.

People shall continue to avoid visiting bars, gyms, public swimming pools, interactive amusement venues such as bowling alleys and video arcades, massage establishments, tattoo studios, piercing studios or cosmetology salons. The use of drive-thru, pickup, or delivery options for food and drinks remains allowed and highly encouraged throughout the limited duration of the order.

People are not yet permitted to visit nursing homes, state supported living centers, assisted living facilities or long-term care facilities unless to provide critical assistance as determined through guidance from the Texas Health and Human Services Commission (HHSC).

Schools are closed for the 2019-2020 school year. Teachers and staff are encouraged to work remotely if possible.

The governor emphasized during the April 27 press conference that those businesses that would be permitted by GA-18 to reopen are not required but may choose to do so. He called the limited reopening outlined in GA-18 "Phase I" of reopening Texas, and stated that a second phase of business reopenings could come as soon as May 18, as long as the state sees "two weeks of data to confirm no flare-up of COVID-19." According to the governor, the second phase would allow businesses to expand their occupancy by 50 percent.

Gov. Abbott, together with the Strike Force to Open Texas, said state officials working on safe ways to reopen summer camps and childcare. Outdoor sports are permitted, with no more than four participants at a time. Examples the governor gave at his press conference included golf and tennis.

GA-19 supersedes Executive Order GA-16, but does not supersede Executive Orders GA-10, GA-11, GA-12, GA-13, GA-15 or GA-17.

Executive Order GA-19: Healthcare Professionals May Service Patients

Beginning at 12:01 a.m. on May 1, 2020, and with no date of expiration, all licensed healthcare professionals may provide services to patients, provided that they comply with "any emergency rules promulgated by their respective licensing agencies dictating minimum standards for safe practice during the COVID-19 disaster."

Every hospital licensed under Texas Health and Safety Code ch. 241 must continue to reserve at least 15 percent of its hospital capacity for treatment of COVID-19 patients, accounting for the range of clinical severity of COVID-19 patients, as determined by HHSC. Certain provisions of the Texas Administrative Code continue to be suspended to the extent necessary to implement increased occupancy in the event of surge needs for hospital capacity due to COVID-19.

GA-19 supersedes Executive Order GA-15 as of 12:01 a.m. on May 1, 2020, but will not supersede Executive Orders GA-10, GA-11, GA-12, GA-13, GA-17 or GA-18.

Executive Order GA-20: Removing Certain Travel Restrictions

Effective at 12:01 a.m. on Friday, May 1, 2020, and with no date of expiration, travel restrictions are modified as follows:

• Executive Order GA-12 is rescinded and terminated in its entirety. Executive Order GA-11 and the March 29, 2020, proclamation are rescinded and terminated to the extent applicable to travelers from New Orleans or the state of Louisiana. Any mandatory self-quarantine already in effect as a result of these Executive Orders, to the extent applicable to travelers from New Orleans or the state of Louisiana is terminated as of 12:01 a.m. on May 1, 2020.
• GA-11 and the March 29, 2020, proclamation are otherwise superseded by this order, except that any mandatory self-quarantine already in effect thereunder, as of 12:01 a.m. on May 1, 2020, shall continue until its expiration as set forth in GA-11.
• Every person who enters Texas as the final destination through an airport, from a point of origin or point of last departure in the following — the states of California, Connecticut, New York, New Jersey and Washington, as well as the cities of Atlanta, Chicago, Detroit or Miami — shall be subject to mandatory self-quarantine for a period of 14 days from the time of entry into Texas or the duration of the person's presence in Texas, whichever is shorter. Gov. Abbott may by proclamation add to or subtract from the list of states and cities covered by this executive order.
• This order to self-quarantine shall not apply to people traveling in connection with military service, emergency response, health response, or critical infrastructure functions, as may be determined by TDEM.
• Each person covered under this order to self-quarantine shall be responsible for all associated costs, including transportation, lodging, food and medical care.

A covered person shall use a form prescribed by the Texas Department of Public Safety (DPS) to designate a quarantine location in Texas, such as a residence or a hotel, and should proceed directly from the airport to the designated quarantine location entered on the DPS form. Any covered person exhibiting symptoms of COVID-19 shall be escorted to the designated quarantine location by a DPS trooper.

A covered person shall remain in the designated quarantine location for a period of 14 days or the duration of the person's presence in Texas, whichever is shorter, leaving only to seek medical care or to depart from Texas.

GA-20 supersedes Executive Order GA-11 and Executive Order GA-12 as set forth above, but does not supersede Executive Orders GA-10, GA-13, GA-17, GA-18 or GA-19.

DISCLAIMER: Please note that the situation surrounding COVID-19 is evolving and that the subject matter discussed in these publications may change on a daily basis. Please contact your responsible Holland & Knight lawyer or the authors of this alert for timely advice.

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