Debate ramps up over governor’s emergency powers

For roughly the past year, Republicans and Democrats have picked apart the state’s response to the coronavirus pandemic — and particularly how Gov. Greg Abbott has wielded his power along the way.

Now, with less than 90 days left in the 2021 regular legislative session and as Abbott has moved to lift most of the restrictions he imposed, the Texas Legislature is setting its sights on addressing the governor’s emergency powers during a pandemic. And while many differences remain on the approach, members of both parties and both chambers of the Legislature appear intent on doing something.

In the House, a top lieutenant of GOP Speaker Dade Phelan has filed a wide-ranging bill that would affirm the governor’s ability to suspend state laws and require local jurisdictions to get approval from the secretary of state before altering voting procedures during a pandemic, among other things. The measure has been designated House Bill 3, indicating it’s a top priority for the new speaker, behind the lower chamber’s proposed state and supplemental budgets in House Bills 1 and 2, respectively.

The author of House Bill 3, Rep. Dustin Burrows, R-Lubbock, has said the proposal can serve as a starting point for lawmakers to begin to map out what the state’s response should look like in the event of another pandemic.

“After going through the last year of a pandemic and the government reaction to it, we owe Texans a healthy and robust debate about what we agree and disagree with,” Burrows said in a statement to The Texas Tribune for this story. “I filed HB3 so we could have a holistic review of state governance and to make sure we protect our liberties during a state emergency.”

The Senate, meanwhile, is appearing to take a more piecemeal approach. Lt. Gov. Dan Patrick has included several pandemic-related proposals as part of his 31 legislative priorities for the session, including a “First Responders Pandemic Care Act” and a “Family Nursing Home Visitation Rights” bill. Patrick’s office has remained tight-lipped so far about the substance of those proposals — many of which have not yet been filed — or his chamber’s contrasting approach. A Patrick spokesperson declined to comment on the record.

“Things are off to a slow start, and I think we’re probably in wait-and-see mode” when it comes to reforming emergency powers, said Sen. Carol Alvarado, D-Houston, chair of the Senate Democratic Caucus. “There seems to be more going on on the Republican side of that, but as far as doing something like an HB 3 goes, I’m not sure.”

There are broad areas of agreement between the two chambers on issues like protecting businesses from certain lawsuits related to COVID-19, which is among Patrick’s and Abbott’s priorities and is included in the House’s omnibus proposal. But the more tricky territory could be reforming the parameters of a state pandemic response.

The emergency powers debate will unfold in the aftermath of Abbott’s decisions to lift the statewide mask mandate and allow businesses to reopen at 100% capacity. Abbott announced the moves earlier this week, and they go into effect Wednesday.

While those decisions took some intraparty heat off of Abbott, there is still interest at the Capitol in a broader discussion about executive authority — interest from both parties. Democrats and some public health experts have called on him at times to be more strict to slow the spread of the virus, or to allow county officials to impose local measures that go further than his statewide mandates.

Early in the pandemic, Abbott issued what essentially amounted to a statewide shutdown order, and he kept in place some level of capacity limitations for businesses until his announcement this week. In July, he mandated that Texans wear masks in public. And he has taken multiple steps to lift numerous state regulations, such as allowing restaurants to sell groceries and mixed drinks to go.

Abbott is well aware that some lawmakers, particularly in his own party, are interested in reining in his authority. In his State of the State speech last month, he promised to “continue working with the Legislature to find ways to navigate a pandemic while also allowing businesses to remain open.” In media appearances afterward, he signaled openness to reforming the governor’s emergency powers, telling the Tribune that his office is “offering up some legislation ourselves on ways to address this going forward.”

However, it remains to be seen how much power Abbott is willing to relinquish. He told the Tribune that his office is working on legislation to “pre-plan” a pandemic response, “but it has to be done in a way that leaves flexibility to move swiftly.” He said he still wants the governor to be able to unilaterally cut regulations in such cases and to respond to requests from the federal government that can have as short as a 24-hour deadline. Abbott has also indicated that he wants to permanently end some of the regulations he suspended.

Phelan, a Beaumont Republican, has also advocated for a balanced approach, and in a statement for this story, the speaker applauded Burrows “for taking a leading role” in addressing the issue this legislative session.

“[House Bill 3] is the House’s blueprint for pandemic response,” Phelan said, “and our chamber welcomes healthy debate over the best way to defend our liberties, create predictability in times of crisis, and safeguard our economy.”

Conversations over how the Legislature should respond to the pandemic have extended beyond the governor’s emergency powers, with some lawmakers pushing for broader health reforms and changes to the way the state reports data or distributes vaccines. But those discussions have, to some extent, been delayed after a massive winter storm last month left millions without power and water, setting off committee hearings, investigations and other debates about reforming the state’s power grid and the entities in charge of overseeing it.

That recent energy disaster, coupled with lawmakers attempting to legislate during a pandemic, has put the Legislature behind schedule with 88 days left of the 140-day regular session, making it unclear how those two big-ticket items — a pandemic and winter weather response — will pass along with everything else on the agenda by the time the two chambers gavel out.

“A great, conservative victory”

As filed, House Bill 3 would carve out future pandemics from how the state responds to other disasters, such as hurricanes. For roughly the past year throughout the pandemic, the state has been operating under the Texas Disaster Act of 1975, which Abbott has used to issue statewide guidelines. Some have argued that the disaster statute did not fit the circumstances brought on by the unprecedented pandemic and that tweaks would be needed should a similar crisis happen in the future.

The bill would also require local jurisdictions to receive approval from the secretary of state before altering voting procedures during a pandemic — an attempt to avoid the headlines and confusion that defined much of the 2020 general election, such as court battles over mail-in ballot applications and drive-thru voting.

“All of these jurisdictions, especially in [Harris and Dallas counties], the more blue areas, we’re not going to let them use a pandemic excuse to change the rules of the game to try to get more Democrats out to vote,” Burrows said last week on the Lubbock-based Chad Hasty radio show, noting that the Republican Party of Texas has named “election integrity” a top priority this legislative session.

Among its other provisions, the bill would affirm existing protections for places of worship remaining open during a pandemic, and for the sale or transportation of firearms and ammunition.

The firearms issue came up in March 2020 as businesses across the state were closing due to stay-at-home orders. After Burrows requested that Texas Attorney General Ken Paxton weigh in on whether local officials can list firearm sales as essential businesses, Paxton’s office responded in a nonbinding opinion that gun stores are essential businesses and that local officials could not adopt “regulations related to the transfer, possession, or ownership of firearms, or commerce in firearms.” Religious services were included as an essential service in Abbott’s statewide stay-at-home order issued in March, though many congregations decided to close their doors and move online.

House Bill 3 would also address liability protections for businesses operating during a pandemic, so long as that entity “knew of the risk of exposure or potential exposure … made a reasonable effort to comply with applicable federal, state, and local laws, rules, ordinances, declarations, and proclamations related to the pandemic disaster … and [if] the act or omission giving rise to the exposure or potential exposure was not wilful, reckless or grossly negligent.”

There’s a provision in House Bill 3 that would require public school districts not offering in-person instruction full time to pay for their students to attend off-campus learning programs. The education commissioner can pre-approve specific programs. Some in the education community have characterized that provision as a school voucher, which allows parents to use public funds for private education.

“It’s not a voucher bill, it’s a get-your-schools-open bill,” Burrows told the Tribune.

The bill would also affirm the governor’s ability to suspend state laws and allow for the preemption of local orders issued by county judges or mayors if they’re inconsistent with state orders. Keeping those two provisions of existing law in House Bill 3 leaves in place the governor’s broad executive authority during a disaster, which both Democrats and Republicans have criticized over the past year.

“I think it’s incumbent upon us as lawmakers to design a roadmap,” Burrows told Hasty, later calling the bill “a great, conservative victory if we can get it across the finish line.”

But some Republicans have already started knocking the Burrows proposal, arguing it would grant too much authority to the governor if it passed. Texas GOP Chair Allen West, who has openly disagreed with some of Abbott’s pandemic orders, said in a Monday email to supporters that legislation such as House Bill 3 “should concern us all.”

“This week we remember, 185 years ago, how a few men stood up against dictatorial powers,” West wrote, referring to the lead-up to Texas Independence Day in 1836. “How is it that we are seeking to expand such powers?”

Democrats have also at times been wary of the governor’s emergency powers during the pandemic, with some criticizing Abbott over what they argued was confusing messaging or too slow of a response. Any reforms to those emergency powers, say Democrats like Rep. Chris Turner, D-Grand Prairie, should include granting local officials such as mayors and county judges more jurisdiction during disasters.

Turner, who chairs the House Democratic Caucus, said in a statement to the Tribune that while he expects House Bill 3 “to change significantly over the course of the session,” there’s “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.”

“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.

Some shared ground

The Senate’s response to

the pandemic has so far been more mercurial than that of the lower chamber. Patrick has released the names of his top 31 priorities for this legislative session. Roughly half a dozen of them appear to be related to the coronavirus, but many have not yet been filed. A handful of Senate Republicans did not respond to questions from the Tribune about what those proposals might entail.

Lately, Patrick has turned his focus more toward last month’s winter storm, and he has electrical grid reform bills slated as Senate Bills 2 and 3, behind only the budget.

“I personally am going to put this on my back and take responsibility for fixing it,” Patrick said last week ahead of hearings by both the Senate and the House.

There is, however, some shared ground between Senate and House priorities, namely those aimed at limiting the government’s power over private organizations. Last May, Patrick, Abbott and then-House Speaker Dennis Bonnen wrote a letter to Congress urging the passage of liability protections for businesses. The “Pandemic Liability Protection Act,” to be filed as Senate Bill 6, is also on the list of Senate priorities.

Similarly, the Senate is looking to shore up protections for places of worship. In fact, the Senate’s version goes beyond the provision in HB 3 to expressly prohibit any government official or agency from closing religious institutions.

Other proposals on the Senate’s radar include enumerating visitation rights for families with loved ones in long-term care facilities and a bill aimed at first responders, titled the “First Responders Pandemic Care Act.”

“I have listened to emotional stories from constituents and heard from desperate families across Texas who were not allowed to see a loved one for months,” said Sen. Lois Kolkhorst, R-Brenham, chair of the Health and Human Services Committee. “While there is a public health mission to protect our vulnerable populations from COVID19, that pursuit should not send residents into a state of solitary confinement with no personal contact from family or friends.”

Then there are the governor’s emergency powers, which senators in both parties say are at least worth a look.

“I think that’s important to always include the Legislature as much as possible,” said Sen. José Menéndez, D-San Antonio, noting how large and diverse a state Texas is. “I wasn’t in the governor’s seat and therefore I don’t want to second-guess, but I do think that had we had more of an input, I think we could’ve had decisions that were more reflective of the whole state, and I think that would’ve been positive.”

Disclosure: The Texas secretary of state has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. Find a complete list of them here.

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