Lawmakers seek to curb emergency powers
Bipartisan effort aims at Abbott’s COVID restrictions
As Republican Gov. Greg Abbott moved this week to rescind most of his COVID-19 executive orders, members of the Texas Legislature have set their sights on ways to curb those powers in the future.
Throughout the pandemic, Democrats and even some conservatives have bemoaned their lack of input on restrictions that Abbott put in place through executive orders. Texas was one of just three states that went 10 months without convening their Legislatures to help shape their pandemic response.
The Legislature meets every two years and can only meet in the interim to address targeted issues during a special session. The catch: only the governor can call a special session, and Abbott declined to do so.
Some of the legislation would require the governor to seek approval from the House and Senate to extend a 30-day disaster declaration or otherwise force the governor to call a special session after a month.
Yet the leading contender in the Texas House would not go quite that far. Instead of limiting the duration of executive orders without legislative approval, the sweeping reform bill parses out what kind of restrictions the governor can enact during a pandemic and clarifies his ability to suspend laws and rules if necessary.
Temporarily lifting vehicle registration requirements, for example, would be acceptable, while any orders that violate the state’s religious freedom act would not. The bill would also require local governments to ask for permission from the secretary of state before changing voting rules and would give essentially all businesses liability from civil suits related to COVID-19.
House Bill 3’s low number indicates it’s a priority for House Speaker Dade Phelan. The bill’s author, state Rep. Dustin Burrows, R-lubbock, said it’s still a work in progress.
“It’s very much a beginning point,” Burrows said. “It probably has a lot of things that we’re going to continue to add, but what I think this shows is a commitment to having a very serious conversation about pandemic powers.”
Even with more changes to come, it’s clear that HB 3 does not assuage certain contingents of conservatives, including Texas GOP Chair Allen West who has often found himself to the right of the party’s majority and has repeatedly clashed with the governor over his pandemic-related
In an email to supporters this week, West wrote that bills like HB 3 “should concern us all.”
“This week we remember, 185 years ago, how a few men stood up against dictatorial powers,” West wrote on Monday, which was Texas Independence Day. “How is it that we are seeking to expand such powers?”
Abbott had welcomed reforms and last month told the Texas Tribune that he was working with legislators to “pre-plan how a response would be done,” adding that “it has to be done in a way that leaves flexibility to move swiftly.” His spokeswoman did not immediately respond to a request for comment about HB 3.
Steve Toth, R-the Woodlands, filed a bill that would have given the Legislature the power to intervene mid-pandemic if voters apthe proved a constitutional amendment. Toth's bill, HJR 42, was one of at least eight that have been filed by lawmakers on both sides of the aisle on the subject.
Last year, Toth and other conservative lawmakers were also party to lawsuits against the governor claiming Abbott abused his emergency powers when he extended the early voting period and when he signed off on a deal with a contact-tracing company.
But Toth said Wednesday that he felt confident that Phelan and Burrows are listening to feedback and willing to make changes that other members deem necessary to strengthen the bill. Whether that will include a requirement for a special session, however, remains to be seen.
“I'd be seriously disappointed if they weren't welcoming input,” Toth said. “I'd be disappointed if they weren't saying how can we change to make it better, but they are, enthusiastiorders. cally.”
Phelan, for his part, has supported Abbott taking charge during disasters, something he's said helped his community of Beaumont during Hurricane Harvey. In a statement Thursday, Phelan called HB 3 “the House's initial blueprint for our pandemic response.”
“Our chamber welcomes healthy debate over the best way to defend our liberties, create predictability in times of crisis, and safeguard our economy,” he said.
House Democratic Caucus Chair Chris Turner said in a statement that while the bill will likely go through many changes as the session goes on, “there is broad interest in addressing how future governors respond to future emergencies, given Governor Abbott's confusing, slow and often inadequate response to the COVID-19 pandemic — not to mention last month's winter storm.”
He added that he hopes legislation will give local leaders the chance make rules for their own communities without being pre-empted by the governor. As of now, the law does the opposite, affirming a clause that most of Abbott's orders have included stating that a governor's emergency orders supersede local ones.
“Beyond that, we need to prioritize fixing our broken data reporting systems so we can make decisions based on science rather than politics,” Turner said.
Putting checks on the governor's emergency powers was not among Lt. Gov. Dan Patrick's 31 legislative priorities for the session, though civil liability for businesses during the pandemic ranked high. His top two and three bills relate to electrical grid reform following last month's winter storm. Patrick's spokesman did not immediately respond to a request for comment.
A group of senators has also filed Senate Bill 26, which goes further than HB 3 by preventing government agencies and public officials from issuing any order that would close or effectively close religious institutions during a disaster.
Several senators have filed bills similar to Toth's. Senate Joint Resolution 45 by Sen. Brian Birdwell, Rgranbury, would require the governor to convene a special session in order to extend a disaster declaration beyond 30 days or issue new orders if they affect a large portion of the population. If passed, it would require voter approval of a state constitutional amendment.
Another by Sen. Nathan Johnson, D-dallas, proposes a constitutional amendment that would require the lieutenant governor and House speaker to call the legislature into special session if at least two-thirds of the members of each chamber requested it.
Yet another bill filed by Austin Democratic Sen. Sarah
Eckhardt, SJR 33, would allow the House and Senate leaders to decide on their own to call the legislature into special session without a petition from other lawmakers and to decide what subjects can be discussed during that session.
“My instinct on this is that there is bipartisan support for a methodology for calling a special session without the governor,” said Eckhardt, the former county judge of Austin's Travis County. “I know I was frustrated as a county judge that we were going month after month after month into a pandemic without having a legislative way in.”
When a county judge declares an emergency, she noted, he or she has to return to the commissioners court to explain his or her rationale and ask for approval to extend it within seven days; otherwise it expires.