FILED 20-0430 5/29/2020 9:18 AM tex-43318445 SUPREME COURT OF TEXAS BLAKE A. HAWTHORNE, CLERK No. ______________ In the Supreme Court of Texas IN RE STEVEN HOTZE, MD, HON. WILLIAM ZEDLER, HON. KYLE BIEDERMANN, EDD HENDEE, AL HARTMAN, NORMAN ADAMS, GABRIELLE ELLISON, TONIA ALLEN, PASTOR JUAN BUSTAMANTE, PASTOR JOHN GREINER, AND PASTOR MATT WOODFILL, Relators, ____________________ Original Proceeding Pursuant to Texas Constitution art. V, §3 E ME R G E N C Y PE T I T I O N F O R WR I T O F M A N D A MU S JARED WOODFILL State Bar No. 00788715 Woodfill Law Firm, P.C. 3 Riverway, Ste. 750 Houston, Texas 77056 (713) 751-3080 (Telephone) (713) 751-3058 (Facsimile) woodfillservice@gmail.com Counsel for Relators Unofficial Copy IDENTITY OF PARTIES AND COUNSEL Relators: Steven Hotze, MD, Hotze Health & Wellness Center, Texas Resident owner of Hotze Health & Wellness Center, Houston, Texas. Hon. William “Bill” Zedler, State Rep. District 96, Texas House of Representatives, Arlington, Texas. Hon Kyle Bidermann, State Rep. District 73, Texas House of Representatives, Fredricksburg, Texas. Edd Hendee, Taste of Texas Restaurant, Houston, Texas. Al Hartman, Hartman Income REIT, Houston, Texas. Norman Adams, Adams Insurance Services, Inc., Houston, Texas. Gabrielle Ellison, owner of Big Daddy Zanes Bar, West Odessa, Texas. Tonia Allen, owner of Machine Shed Bar and Grill, Kilgore, Texas. Pastor Juan Bustamante, City on a Hill Church, Houston, Texas. Pastor John Greiner, Glorious Way Church, Houston, Texas. Pastor Matt Woodfill, The Way Church, The Woodlands, Texas. Counsel for Relators: Jared R. Woodfill State Bar No. 00788715 3 Riverway, Suite 750 Houston, Texas 77056 Tel: (713) 751-3080 Fax: (713) 751-3058 woodfillservice@gmail.com Respondent and Real Party in Interest: Hon. Greg Abbott, Governor of Texas ii Unofficial Copy Counsel for Respondent: Hon. Kenneth Paxton, Texas Attorney General P.O. Box 12548 Austin, Texas 78711-2548 (512) 463-2100 iii Unofficial Copy TABLE OF CONTENTS Identity of Parties and Counsel ................................................................................. ii Table of Contents ......................................................................................................iv Index of Authorities ................................................................................................... v Statement of Case....................................................................................................... 1 Statement of Jurisdiction............................................................................................ 2 Issue Presented ........................................................................................................... 4 Statement of Facts ...................................................................................................... 5 Summary of Argument .............................................................................................. 9 Argument.................................................................................................................... 9 Conclusion ............................................................................................................... 27 Certificate of Compliance ........................................................................................ 29 Certificate of Service ............................................................................................... 30 iv Unofficial Copy INDEX OF AUTHORITIES CASES A & T Consultants, Inc. v. Sharp, 904 S.W.2d 669, 672 (Tex. 1995) ....................... 2 Hotze et al v. Abbott, Cause No. D-1-GN-2-002146 (Travis County, Texas) .......... 2 In re Abbott, No. 20-0291, 2020 WL 1943226 at *1 (Tex. Apr. 23, 2020) ........................................................................................................................9, 10, 11 In re Salon A La Mode, et al, No. 20-0340 (Tex. May 5, 2020) ............................... 9 Brown Cracker & Candy co. v. City of Dallas, 104 Tex. 290, 294-95 (1911)........12 Arroyo v. State, 69 S.W. 503, 504 (Tex. Crim. App. 1902) ..............................12, 13 Boykin v State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991) ...............................14 Copeland v. State, 92 Tex. Crim. 554, 244 S.W. 818, 819 (Tex. Crim. App. 1922) .................................................................................................................................. 14 Russell v. Farquhar, 55 Tex. 355., 359 (1881)........................................................14 Jones v. State, 803 S.W.2d 712, 716 (Tex. Crim. App. 1991)(citing Gov’t Servs. Ins. Underwriters v. Jones, 368 S.W.2d 560, 563 (Tex. 1963)) ..............................14 Carter v. Hamlin Hosp. Dist., 538 S.W.2d 671, 673 (Tex. Civ. App.-Eastland 1976) ........................................................................................................................15 Hunter v. City of Pittsburgh, 207 U.S. 161, 178-79 (1907) ....................................15 Sasser v. State, 98 S.W.2d 211, 212 (Tex. Crim. App. 1936) .................................15 David v. State, 453 S.W.2d 172, 179 (Tex. Crim. App. 1970), vacated on other grounds in David v. Texas, 408 U.S. 937 (1972) .....................................................15 Grant v. State, 505 S.W.2d 279, 282 (Tex. Crim. App. 1974) ................................15 State v. Rhine, 297 S.W.3d 301, 306 (Tex. Crim. App. 2009) ..........................15, 16 Tex. Boll Weevil Eradication Found., Inc., 952 S.W.2d 454, 466 (Tex. 1997) ......15 Ex parte Granviel, 561 S.W.2d 503 (Tex. Crim. App 1978) ..................................16 In re Dean, 393 S.W.3d 741, 747 (Tex. 2012) ........................................................21 Perry v. Del Rio, 67 S.W.3d 85, 91 (Tex. 2001) ..................................................... 21 Fin. Comm'n of Texas v. Norwood, 418 S.W.3d 566, 570 (Tex. 2013) .................. 21 Walker v. Baker, 196 S.W.2d 324, 328 (1946) ........................................................22 Richards v. LULAC, 868 S.W.2d 306, 310-11 (Tex. 1993) (citations omitted) ......26 STATUTES Tex. Gov. Code § 418 ............................................................... 1, 5, 9, 12, 16, 17, 27 Tex. Gov. Code § 22.002(c)....................................................................................... 2 Tex. Gov. Code § 418.014 ......................................................................................... 5 Tex. Gov. Code § 418.012 ...................................................................................6, 18 v Unofficial Copy Tex. Gov. Code § 418.018(c)..................................................................................... 6 Tex. Health & Safety Code § 81 ..............................................................................17 Tex. Gov. Code § 418.041 .......................................................................................17 Tex. Gov. Code § 418.042 .......................................................................................17 Tex. Gov. Code § 418.173 .................................................................................17, 18 Tex. Code of Crim. Proc. art. 1.04 ...........................................................................19 Tex. Code of Crim. Proc. art. 38.03 ...................................................................19, 20 RULES Tex. R. App. P. 52...................................................................................................... 2 OTHER AUTHORITIES Tex. Const. art. I, § 19..............................................................................1, 19, 20, 26 Tex. Const. art. I, § 28..........................................................................1, 9, 12, 14, 22 Tex. Const. art. II, § 1 ....................................................................1, 9, 12, 14, 21, 22 Tex. Const. art. IV, § 8...................................................................................1, 13, 14 Tex. Const. art. V, § 3(a) ........................................................................................... 2 Tex. Const. art. IV, § 1............................................................................................... 2 George D. Braden, 1 The Constitution of the State of Texas: An Annotated and Comparative Analysis 84 (1977) .............................................................................12 Tex. Const. art. V, § 8 ..............................................................................................13 Tex. Const. art. I, § 3................................................................................................22 vi Unofficial Copy STATEMENT OF THE CASE Texas Government Code §418 is unconstitutional on its face and as applied. Moreover, Governor Abbott’s numerous executive orders related to the COVID-19 pandemic violate the separation of powers doctrine, and numerous provisions in the Texas Constitution’s Bill of Rights, including but not limited to, Article I, §3, Article I, §19, Article I, §28, Article II, §1, and Article IV, §8 Even if the executive orders were founded upon legitimate constitutional authority (which they are not), they are unconstitutional as applied because they were instituted without due process, violate equal protection, and are composed of provisions that are arbitrary, capricious, and which are not the least restrictive means for advancing the government’s purported compelling interest (i.e., protecting public health). 1 Unofficial Copy STATEMENT OF JURISDICTION The Texas Constitution confers jurisdiction on the Texas Supreme Court to issue writs of mandamus. TEX. CONST. art. V, § 3(a). The Court has mandamus jurisdiction under Texas Rule of Appellate Procedure 52. Further, Texas Government Code § 22.002(c) states: “Only the supreme court has the authority to issue a writ of mandamus or injunction, or any other mandatory or compulsory writ or process, against any of the officers of the executive departments of the government of this state to order or compel the performance of a judicial, ministerial, or discretionary act or duty that, by state law, the officer or officers are authorized to perform.” TEX. GOV’T CODE Section 22.002(c). This provision applies to all executive orders issued by Real Party in Interest Abbott related to the COVID-19 pandemic. TEX. CONST. art. IV, § 1. In A & T Consultants, Inc. v. Sharp, the Texas Supreme Court concluded that “district courts generally have no jurisdiction over executive officer respondents” to issue a writ of mandamus to compel those officers to perform duties imposed by law. 904 S.W.2d 668, 672 (Tex. 1995). Accordingly, Relators file this Emergency Petition for Writ of Mandamus. Relators position is corroborated by Real Party in Interest Abbott’s Plea to the Jurisdiction in Hotze et al. v Abbott, Cause No. D-1-GN-20-2146 (Travis County, Texas). Specifically, Abbott argued to the trial court that it lacks jurisdiction to 2 Unofficial Copy adjudicate the Plaintiffs’ (Hotze et al.) request for injunctive relief regarding Abbott’s COVID-19 executive orders because “only the supreme court has authority to issue a writ of mandamus or injunction, or any other mandatory or compulsory writ or process, against any of the officers of the executive departments of government of this state to order or compel the performance of a judicial, ministerial, or discretionary act or duty…the officers are authorized to perform.” (Tab “A”, Abbott Plea to Jurisdiction in Travis County p. 6) 3 Unofficial Copy ISSUES PRESENTED 1. Do Governor Abbott’s Executive Orders related to the COVID-19 virus violate Texas Constitution, art. I, sec. 28? 2. Do Governor Abbott’s Executive Orders related to the COVID-19 violate Article II, sec. 1? 3. Do Governor Abbott’s Executive Orders related to the COVID-19 virus violate Texas Constitution, art. I, sec. 19? 4. Do Governor Abbott’s Executive Orders related to the COVID-19 virus violate Texas Constitution, art. I, sec. 3? 5. Do Governor Abbott’s Executive Orders related to the COVID-19 virus violate Texas Constitution, art. IV, sec. 8? 4 Unofficial Copy STATEMENT OF FACTS I. CHRONOLOGY OF GOVERNOR ABBOTT’S EXEUCTIVE ORDERS A. March 13, 2020: Governor Abbott Issues Disaster Declaration On March 13, 2020, Governor Abbott issued a disaster proclamation, certifying under Section 418.014 of the Texas Government Code that COVID-19 poses an imminent threat of disaster for all counties in the State of Texas. (Tab "B"). In response to the COVID-19 virus, Governor Abbott has issued numerous executive orders that “Lock-Down” Texas, continue to destroy the Texas economy, mandate the "suspension of Texas laws", and trample on the constitutional rights of all Texans, purportedly based on the authority provided to him by Texas Gov’t Code §418. (Tab "C" and “D”). On their face, the Governor Abbott’s COVID-19 Orders state that the Governor can and is suspending regulatory statutes, and that his executive orders have "the full force and effect of law." (Tab "C" and “D”). B. March 19, 2020: Governor Abbott Issues Executive Order GA-08 On March 19, 2020, Governor Abbott issued Executive Order GA-08, "mandating certain obligations for Texans" to "slow the spread of COVID-19 for 15 days...." (Tab "C"). GA-08 states that "businesses should be allowed to continue providing essential services during the COVID-19 disaster...." (Tab "C"). Those businesses that do not provide “essential services” were shuttered. (Tab “C”). 5 Unofficial Copy The Governor contends he has the authority to unilaterally close businesses, trample on individual liberties, and limit Relators’ ability to do business and move about freely, citing Texas Government Code Section 418.012: "[T]he governor may issue executive orders...hav[ing] the force and effect of law." (Tab "C" and “D”). For instance, to limit Relators ability to move about freely, Governor Abbott references Texas Government Code Section 418.018(c), contending "the governor may control ingress and egress to and from a disaster area and the movement of persons and the occupancy of premises in the area...." (Tab "C" and “D”). Until May 7, 2020, those who failed to comply with the Governor's Executive Orders "issued during the COVID-19 disaster," committed "an offense punishable by a fine not to exceed $1,000, confinement in jail for a term not to exceed 180 days, or both fine and confinement." (Tab "C"). C. April 3, 2020: Governor Abbott Issues Executive Order GA-14 Executive Order GA-08 expired on April 3, 2020. (Tab "C”). On March 31, 2020, Governor Abbott issued GA-14, extending most of the provisions of GA-08 through April 30, 2020. (Tab “D”). For the first time, Governor Abbott added "religious services conducted in churches, congregations, and houses of worship" as "essential services". (Tab "D"). At first glance this sounds great to pastors and individuals who want to hold in-person worship services; however, the language that followed demonstrates that the Order does not truly consider in-person worship 6 Unofficial Copy services to be “essential”. Specifically, the details of the Order state that “churches, congregations, and houses of worship" are limited to "remote services." (Tab "D"). GA-14 states, "If religious services cannot be conducted from home or through remote services, they should be conducted consistent with the Guidelines from the President and the CDC by practicing good hygiene, environmental cleanliness, and sanitation, and by implementing social distancing to prevent the spread of COVID19." (Tab "D"). All Relators that are Pastors have the ability to hold remote services, as do most churches in the State of Texas. Therefore, the Order instructed that they should meet remotely, and not meet in person as a corporate body. D. April 27, 2020: Governor Abbott Issues Executive Order GA-18 GA-14 expired on April 30, 2020. (Tab “D”). On April 27, 2020, Governor Abbott issued GA-18, allowing for so-called “reopened services”. (Tab "E"). GA18 states, among other things, that people “shall avoid” certain types of businesses, including, “bars, gyms, public swimming pools, interactive amusement venues such as bowling alleys and video arcades, massage establishments, tattoo studios, piercing studios, or cosmetology salons.” (Tab “E”). GA-18 also closed public schools for the rest of the 2019-20 school year and small sections of libraries, malls, and museums that have interactive exhibits and play areas. GA-18 defines some business operating at 25% capacity as “reopened services” with no real explanation for what that means or why 25% is anything other than a completely arbitrary number. GA-18 leaves open 7 Unofficial Copy so-called “essential services” including grocery stores, pharmacies, and dozens of other businesses, without imposing mandated restrictions, and without demonstrating or even mentioning why some businesses are considered “essential” and others are not. E. May 7, 2020: Governor Abbott Issues GA-22 On Tuesday, May 5, 2020, Shelly Luther was sentenced to seven (7) days in jail and fined $7,000.00 for violating Governor Abbott’s Order GA-18. Soon thereafter, on May 7, 2020, Governor Abbott issued GA-22. (Tab “F”) GA-22, among other things, opened “cosmetology salons, hair salons, barber shops, nail salons/shops, and other establishments where licensed cosmetologists or barbers practice their trade. . ..” (Tab “F”). While opening these businesses, GA-22 further ordered people “shall avoid visiting” certain businesses, including but not limited to, bars, amusement parks, tattoo parlors” and many more. (Tab “F). GA-22 also eliminated confinement in jail as an available penalty for violations of Governor Abbott’s executive orders. (Tab “F”). In GA-22, Governor Abbott further ordered that the amendment “operates retroactively to April 1, 2020.” (Tab “F”). F. May 18, 2020: Governor Abbott Issues GA-23 On May 18, 2020, Governor Abbott issued GA-23, the second phase of the State of Texas' ongoing plan to reopen, among other things, allowing restaurants to increase their occupancy to 50% . (Tab “G”). 8 Unofficial Copy SUMMARY OF ARGUMENT Texas Government Code §418 is unconstitutional on its face because it is an improper delegation of legislative authority expressly prohibited by Texas Constitution, Art. II, §1. The subject executive orders issued by Governor Abbott are facially unconstitutional because they are founded on §418 (an unconstitutional statute) and because they purport to exercise the power to suspend laws which authority is reserved exclusively to the legislature. Texas Constitution, Art. I, §28. Even if the executive orders were founded upon legitimate constitutional authority (which they are not), they are unconstitutional as applied because they were instituted without due process, violate equal protection, and are composed of provisions that are arbitrary, capricious, and which are not the least restrictive means for advancing the government’s purported compelling interest (i.e., protecting public health). As such, Texas Government Code §418, and all executive orders issued pursuant thereto, should be declared unconstitutional and rendered null and void. ARGUMENT AND AUTHORITIES “The Constitution is not suspended when the government declares a state of disaster.” In re Abbott, No. 20-0291, 2020 WL 1943226 at *1 (Tex. Apr. 23, 2020). “All government power in this country, no matter how well intentioned, derives only from the state and federal constitutions.” In re Salon A La Mode, et al., No. 20-0340 9 Unofficial Copy (Tex. May 5, 2020). Government power cannot be exercised in conflict with these constitutions, even in a pandemic.” Id. The Texas Constitution limits Governor Abbott’s authority even in times of crisis or “extraordinary occasions.” If not limited, and if Constitutional rights may be suspended or infringed, unilaterally and for unlimited duration, whenever the Governor “declares” an emergency, then such rights are wholly illusory. By suspending provisions of the Texas Constitution, failing to convene the legislature for almost three months on an “extraordinary occasion,” arbitrarily picking and choosing winners and losers, and unilaterally suspending the laws of the state of Texas, Abbott’s numerous executive orders are unconstitutional and undercut the authority of the Texas Legislature. I. EXECUTIVE ORDERS ARE UNCONSTITUTIONAL A. Governor Abbott’s Executive Orders Violate Article I, Section 28 of the Texas Constitution “The Constitution is not suspended when the government declares a state of disaster.” In re Abbott, No. 20-0291, 2020 WL 1943226, at *1 (Tex. Apr. 23, 2020). “All government power in this country, no matter how well-intentioned, derives only from the state and federal constitutions.” In re Salon A La Mode et al., No. 20-0340 (concurring opinion, J Blacklock) (Tex. May 5, 2020). During a pandemic “the judiciary, the other branches of government, and our fellow citizens—must insist that every action our governments take complies with the Constitution, especially 10 Unofficial Copy now. If we tolerate unconstitutional government orders during an emergency, whether out of expediency or fear, we abandon the Constitution at the moment we need it most.” Id. Any government that has made the grave decision to suspend the liberties of a free people must demonstrate that its chosen measures are absolutely necessary to combat a threat of overwhelming severity. Id. The government is also required to demonstrate that less restrictive measures cannot adequately address the threat. Id. Whether it is strict scrutiny or some other rigorous form of review, courts must identify and apply a legal standard by which to judge the constitutional validity of the government’s anti-virus actions. Justice Blacklock further stated: “[W]hen constitutional rights are at stake, courts cannot automatically defer to the judgments of other branches of government. When properly called upon, the judicial branch must not shrink from its duty to require the government’s anti-virus orders to comply with the Constitution and the law, no matter the circumstances.” Id. Government power cannot be exercised in conflict with the constitution, even in a pandemic. In re Abbott, 2020 WL 1943226 at *1 (Tex. Apr. 23, 2020). Texas law does not and cannot empower the Governor to suspend the laws of the State of Texas. The Texas Supreme Court has long held that the Legislature cannot delegate “to anyone else the authority to suspend a statute law of the state.” Brown Cracker 11 Unofficial Copy & Candy Co. v. City of Dallas, 104 Tex. 290, 294-95 (1911); Arroyo v. State, 69 S.W. 503, 504 (Tex. Crim. App. 1902) (“Under the constitution, the legislature ha[s] no right to delegate its authority . . . to set aside, vacate, suspend, or repeal the general laws of this state.”). “[P]rior to 1874 this section was as follows: ‘No power of suspending laws in this state shall be exercised, except by the legislature, or its authority’” (emphasis added). Arroyo, 69 S.W. at 504. This constitutional provision was then specifically amended to remove the provision allowing the Legislature to delegate its suspension power by “its authority.” Id. This was expressly done to remedy “the history of the oppressions which grew out of the suspension of laws by reason of such delegation of legislative authority and the declaration of martial law.” Id. Article I, § 28 was created in part in response to then-Governor F.J. Davis “declar[ing] . . . counties under martial law” and depriving of liberty “offenders by court martial in Houston.” George D. Braden, 1 The Constitution of the State of Texas: An Annotated and Comparative Analysis 84 (1977). Texas Government Code §418 is therefore unconstitutional on its face because it purports to delegate legislative power to suspend laws to the Governor in contravention of Texas Constitution, Art. I, §28 and Art. II, §1. As the subject Executive Orders endeavor to suspend several provisions of the Texas Constitution, and on their face admit that Abbott is suspending laws in accordance with Texas Gov’t Code §418, the Orders are themselves an unconstitutional suspension of the laws and, therefore, violate Article I, §28 of the 12 Unofficial Copy Texas Constitution and are “null and void.” See Arroyo, 69 S.W. at 504. Additionally, to the extent the Disaster Act of 1975 allows for the suspension of laws by the Governor or any local official, it is unconstitutional and void. B. Executive Orders Violate Article IV, Section 8 of the Texas Constitution Since 1845, the Texas Constitution has allowed the Governor to convene the Legislature “on extraordinary circumstances.” TEX. CONST. art. V, § 8 (1845). In 1866, Article V, § 8 of the Texas Constitution was amended to include language that allowed the Governor to convene the Legislature “at a different place, if that should be dangerous by reason of disease….” TEX. CONST. art. V, §VIII (1866). In 1869, the Texas Constitution was amended, moving former Article V, §VIII, to Article IV, §8. Article IV, §8 (a) of the Texas Constitution currently states: “The governor may, on extraordinary occasions, convene the Legislature at the seat of government, or at a different place in case that should be in possession of the public enemy or in case of the prevalence of disease threat. His proclamation therefor shall state specifically the purpose for which the Legislature is convened.” (emphasis added). For well over 150 years, the Texas Constitution has contemplated convening the legislature on “extraordinary occasions” and that “the prevalence of a disease threat” like COVID-19 may require the legislature to meet at a “different place” other than the “seat of government.” TEX. CONST. art. IV, §8. This provision 13 Unofficial Copy allows our duly elected representative and not one individual, i.e., the Governor, to deal with the “extraordinary occasion.” Additionally, article IV, §8 respects the long-standing doctrine of separation of powers between co-equal branches of government. Shockingly, after almost three months, Abbott has not convened the legislature to address legislation related to “extraordinary occasions” surrounding the COVID-19 pandemic. Instead, Abbott continues to issue executive orders that suspend laws and infringe on the Constitutional liberties of Texans and further destroy the Texas economy. Article IV, §8 is consistent with Article I, §28 in that if it is necessary to suspend laws “on extraordinary occasions,” Governor Abbott can convene the legislature to do so. Additionally, Article IV, §8 is consistent with our strong separation of powers tradition identified in Article II, §1 of the Texas Constitution. C. Executive Orders Are An Impermissible Violation of Separation of Powers Doctrine The Texas Constitution vests law-making power in the legislature. TEX. CONST. art. II, §1. Boykin v State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991); Copeland v. State, 92 Tex. Crim. 554, 244 S.W. 818, 819 (Tex. Crim. App. 1922. See also Russell v. Farquhar, 55 Tex. 355., 359 (1881). Only the legislature can exercise that power, subject to restrictions imposed by the constitution. TEX. CONST. art. II, §1. These restrictions must be express or clearly implied. Jones v. State, 803 S.W.2d 712, 716 (Tex. Crim. App. 1991) (citing Gov’t Servs. Ins. 14 Unofficial Copy Underwriters v. Jones, 368 S.W.2d 560, 563 (Tex. 1963)). The legislature may enact laws that enhance the general welfare of the state and resolve political questions, such as the boundaries of political subdivisions, subject to constitutional limits. Carter v. Hamlin Hosp. Dist., 538 S.W.2d 671, 673 (Tex. Civ. App.-Eastland 1976); see Hunter v. City of Pittsburgh, 207 U.S. 161, 178-79 (1907). The legislature also has exclusive dominion over the fixing of penalties for offenses under the state's penal laws. See Sasser v. State, 98 S.W.2d 211, 212 (Tex. Crim. App. 1936); David v. State, 453 S.W.2d 172, 179 (Tex. Crim. App. 1970), vacated on other grounds in David v. Texas, 408 U.S. 937 (1972); Grant v. State, 505 S.W.2d 279, 282 (Tex. Crim. App. 1974). The legislature may delegate some of its powers to another branch, but only if those powers are not more properly attached to the legislature by Constitutional mandate. For example, legislative power cannot be delegated to the executive branch, either directly or to an executive agency. State v. Rhine, 297 S.W.3d 301, 306 (Tex. Crim. App. 2009). The issue becomes a question of the point at which delegation becomes unconstitutional. Id. The Texas Supreme Court has described the problem: "the debate over unconstitutional delegation becomes a debate not over a point of principle but over a question of degree." Tex. Boll Weevil Eradication Found., Inc., 952 S.W.2d 454, 466 (Tex. 1997). The Texas Court of Criminal Appeals in Ex parte Granviel, 561 S.W.2d 503 (Tex. Crim. App 1978), stated that sufficient standards are necessary to keep the 15 Unofficial Copy degree of delegated discretion below the level of legislating. The existence of an area for exercise of discretion by the executive branch requires that standards are formulated for guidance and there is limited discretion. Ex parte Granviel, 561 S.W.2d at 514. The statute must be sufficiently complete to accomplish the regulation of the particular matters falling within the legislature's jurisdiction, the matters of detail that are reasonably necessary for the ultimate application, operation and enforcement of the law may be expressly delegated to the authority charged with the administration of the statute. Ex parte Granviel, 561 S.W.2d at 514. Therefore, if the legislature has not provided sufficient standards to guide the executive’s discretion and the delegated power is legislative, that executive has been granted a power that is more properly attached to the legislature and the delegation is an unconstitutional violation of separation of powers. State v. Rhine, 297 S.W.3d 306 (Tex. Crim. App. 2019). Here, Texas Government Code §418 et seq. does not provide any standards to guide the Governor’s discretion when identifying penalties, including fines and incarceration. With respect to the COVID-19 related orders, Governor Abbott has chosen to fine violators up to $1,000 and incarcerate them up to 180 days, without any direction from the legislature as to when and how that may be accomplished. D. Orders Violate Texas Government Code §418.173 16 Unofficial Copy Texas Health and Safety Code, Chapter 81 is designed to deal with pandemics. Instead, Governor Abbott, counties, and cities have chosen to utilize the Texas Disaster Act of 1975. TEX. GOV’T CODE, Chapter 418. All of the executive orders issued by Real Party in Interest Abbott include penalties. (Tabs “C” – “G”). Section 418.041 of the Texas Disaster Act creates the Division of Emergency Management which is tasked with preparing “a comprehensive emergency management plan.” TEX. GOV’T CODE, sec. 418.042. It allows “[a]ll or part of the state emergency management plan may be incorporated into regulations of the division or executive orders that have the force and effect of law.” Id at 418.042(c). The Texas Disaster Act allows the plan to contain a penalty for violations of the Emergency Management Plan, stating: “PENALTY FOR VIOLATION OF EMERGENCY MANAGEMENT PLAN. (a) A state, local, or interjurisdictional emergency management plan may provide that failure to comply with the plan or with a rule, order, or ordinance adopted under the plan is an offense. (b) The plan may prescribe a punishment for the offense but may not prescribe a fine that exceeds $1,000 or confinement in jail for a term that exceeds 180 days.” TEX. GOV’T CODE, sec. 418.173. With respect to penalties, the Disaster Act—even if it is Constitutional, which is it not—limits Abbott’s Executive Orders to the language of the emergency management plan. Specifically, Abbott’s Executive Orders are limited to penalties, 17 Unofficial Copy if any, identified in the “emergency management plan” developed by the TDEM. TEX. GOV’T CODE, sec. 418.173. The same would apply to any local plan. Real Party in Interest Abbott’s Executive Orders unlawfully conflate his authority to issue executive orders with the criminal penalties for violating the plan. Specifically, his Executive Orders state: “Under Section 418.173, failure to comply with any executive order issued during the COVID-19 disaster 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 fine and confinement.” (Tabs “C” – “E”). The Emergency Management Plan does not define an act to which criminal penalties accrue. The Texas Emergency Management Plan is located at https://tdem.texas.gov/state-of-texas-emergency-management-plan. The statutory authority identified in section 418.012 does not delegate to Governor Abbott the ability to create criminal penalties for those violating his Executive Orders. Relator Gabbie Ellison, the owner Big Daddy Zanes, was jailed for violating Abbott’s GA-18. Abbott then issued GA-22, eliminating jail as a penalty for any violation of his executive orders and making it retroactive to April 2, 2020. (Tab “F”) However, GA-22 did not eliminate fines. (Tab “F”). On May 18, 2020, Abbott issued Executive Order, GA-23, including language stating that “failure to comply with any executive order issued during the COVID19 disaster is an offense punishable under Section 418.173 by a fine not to exceed 18 Unofficial Copy $1,000….” (Tab “G”). It is clear that Ellison was jailed and fined under Governor Abbott’s Executive Orders. Like most Texans, Ellison was simply trying to support her family in spite of Governor Abbott’s “lock-down” orders. Abbott’s unlawful use of governmental force against all Texans, has not only destroyed the Texas economy and violated the constitutional principles that are deeply rooted in our state’s rich history, including the long standing doctrine of separation of powers between co-equal branches government. E. Orders Violate The Due Process Clause Under Governor Abbott’s Executive Orders, Relators’ businesses are assumed to be virus incubators despite a lack of evidence demonstrating so and without providing those businesses with any due process to contest that assumption. (Tabs “C” – “G”). Article I, § 19 of the Texas Constitution provides that “No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due process of the law of the land.” TEX. CONST. art. I, sec. 19. Article 1.04 of the Texas Code of Criminal Procedure parrots the language of the due course of law provision identified in article I, section 19 of the Texas Constitution. TEX. CODE OF CRIM. PROC. art. 1.04. Moreover, Texas Code of Criminal Procedure art. 38.03 provides that “[a]ll persons are presumed to be innocent and no person may by convicted of an offense unless each element of the offense is proved beyond a reasonable doubt.” TEX. CODE OF CRIM. PROC. 19 Unofficial Copy art. 38.03. By implementing Abbott’s Executive Orders, he has deprived citizens of opportunity to contest their alleged criminal status, and thus violated the due course of law provision of the Texas Bill of Rights; the criminal penalties associated with the COVID-19 executive orders violate the due process clause of Article I, sec. 19 of the Texas Constitution and Texas Code of Criminal Procedure art. 38.03. The rationale behind Abbott’s mass “lock-down” includes an assumption that each citizen is a threat to their fellow Texan. The only governmental interest in a pandemic is to prohibit individuals who are a contagious threat from spreading the disease. To presume in the definition of a crime that the essential element of the crime already exists, is a fundamental contradiction of the presumption of innocence. The law regarding communicable disease is to stop the spread by those who have the disease. The legitimate purpose of pandemic law is to stop those who actually are a threat. Article I, section 19, prevents a governmental action that has the effect of concluding that the lack of evidence indicating one is a threat, i.e., no proof of COVID-19 or the symptoms related thereto, is not a defense to an Order designed to prevent a pandemic. Under Governor Abbott’s arbitrary and capricious COVID-19 Executive Orders, health—which by definition is a defense to any charge that a person is not healthy and is thus a danger to others—is not a defense to the criminal 20 Unofficial Copy penalties and has no impact on what businesses are shuttered and on Texan’s ingress and egress. The Due Process Clause of the Texas Constitution warrants this Court issuing mandamus to prevent Abbott’s Executive Orders that assume guilt and provide no opportunity to contest that guilt. F. Orders Violate Separation of Powers Doctrine Relators Hon. William Zedler and Hon. Kyle Biedermann are current members of the Texas Legislature. Abbott’s Executive Orders unconstitutionally infringe on the roles of the coequal branches of the Legislature and the Judiciary. The Texas Constitution divides the government into “three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: Those which are Legislative to one; those which are Executive to another, and those which are Judicial to another.” TEX. CONST. art. II, § 1. The Texas separation of powers doctrine “prohibits one branch of government from exercising a power belonging inherently to another.” In re Dean, 393 S.W.3d 741, 747 (Tex. 2012). Because of the Texas Constitution’s “explicit prohibition against one government branch exercising a power attached to another,” Perry v. Del Rio, 67 S.W.3d 85, 91 (Tex. 2001), exceptions to the constitutionally-mandated separation of powers may “never be implied in the least; they must be ‘expressly permitted’ by the Constitution itself.” Fin. Comm'n of Texas v. Norwood, 418 S.W.3d 566, 570 21 Unofficial Copy (Tex. 2013). Here, the Texas Constitution, Article I, §28, expressly delegates to the Legislature the sole authority to “suspend law” and there is no provision of Texas law in which the legislature has clearly, expressly, and unequivocally ceded that authority to the executive. The Texas Legislature, not Governor Abbott, is responsible for creating laws under Article II, §1. Abbott’s Orders infringe upon the Legislature’s powers by suspending laws enacted by the Legislature, in the absence of constitutional authority to do so. The Texas Constitution vest all lawmaking power in the Legislature, including the power to make, alter, suspend, and repeal laws. Walker v. Baker, 196 S.W.2d 324, 328 (1946). G. Orders Violate the Equal Protection Clause of the Texas Constitution. Abbott, assumes that preventing the spread of COVID-19 represents a compelling government interest. However, the means sought to fulfill that interest in the subject executive orders are not the least restrictive possible, and thus those means do not pass strict scrutiny. Article I, § 3 of the Texas Constitution provides: “All free men, when they form a social compact, have equal rights, and no man, or set of men, is entitled to exclusive separate public emoluments, or privileges, but in consideration of public services.” 22 Unofficial Copy Abbott’s Executive Orders seek to determine which people, services, and groups are essential and which are non-essential based on vague or arbitrary criteria, that have no rational relationship to the governmental interest of stopping the spread of COVID-19. Such authority to make or alter constitutional rights and/or create legislation is the province of the legislature and the people, not a unilateral decision by one person, Abbott. Through his numerous executive orders, Abbott, not the legislature, has created (or mimicked) classes of people, business, and services he defines as “essential services,” “non-essential services,” “reopened services,” and “closed” businesses. Through his executive orders, Abbott has picked winners and losers, allowing some business to stay open, some to partially reopen, and ordering others closed. Starting on March 19, 2020, GA-08 ordered: “[E]very person in Texas shall avoid social gatherings in groups of more than 10 people,” “people shall avoid eating or drinking at bars, restaurants, and food courts, or visiting gyms or massage parlors,” “people shall not visit nursing homes or retirement or long-term care facilities,” and “schools shall temporarily close.” (Tab “C”). The number of ten people bears no reasonable relationship to the stated goal of limiting the spread of COVID-19; it is purely arbitrary. Why not 9 people? Or 11? Because the number ten has no reasonable or rational relationship to the purported goal of the executive orders, this limitation is arbitrary and void. 23 Unofficial Copy The executive orders also arbitrarily select certain businesses to remain fully open while ordering other similarly situated businesses to remain closed. For instance, liquor stores, bicycle shops, big-box retail stores such as Walmart and Target, lawn care services, pool cleaners, and maid services have never been shut down. However, clothing stores, gyms, restaurants, bars, and massage studios were closed. Restaurants where only recently allowed to open at 25% capacity on April 27, 2020 (Tab “C”). They are now limited to 50% capacity. There is no rational difference between the open and closed businesses as to proximity between staff and customers, so closing some of these similarly-situated businesses are arbitrary and capricious. Shelly Luther owns a hair salon. She was cited for violation of the executive orders requiring her salon to remain closed, and a temporary restraining order was issued by the 14th Judicial District Court in Dallas County to compel her to remain closed. When she opened her salon in violation of that TRO, she was brought into court and found guilty of contempt for the TRO violation and sentenced to serve 7 days in confinement. She then petitioned for a writ of habeas corpus to this Honorable Court, and a writ issued from this Court ordering her freed from confinement without bond on Thursday, May 6, 2020. Soon thereafter, on May 7, 2020, Governor Abbott issued GA-22. Unfortunately, Relator Gabriella Ellison was not so fortunate. During the same week 24 Unofficial Copy Ms. Luther was found in violation of the TRO, Relator Ellison was arrested for opening up her bar, Big Daddy Zanes in West Odessa, Texas, purportedly because her opening of her bar violated GA-18. During the same period Shelly Luther was being prosecuted, Governor Abbott continued his order that “people shall avoid going to bars….” (Tab “E”). Cosmetologist, barbers, bartenders, manicurists, tattoo artists, restaurant wait staff, and their clients/customers are typically within inches of each other for thirty minutes to numerous hours depending on the services being performed. If the plan it so prevent people from being in close proximity to each other so the spread of COVID-19 is limited, then preventing these types of services is probably understandable. However, other businesses also have proximity issues, including retail stores, because staff and customers are also in close proximity to each other for extended periods of time. But in an arbitrary manner, the executive orders closed beauty salons, bars, and restaurants while allowing other businesses like grocery stores and big box retailers to remain fully operational. This indicates that “limiting proximity to avoid spread of COVID-19” either was never the true goal of the restrictions (calling into question the purported “compelling governmental interest” prong of the strict scrutiny analysis), or if it was, it was exercised in a completely arbitrary manner, allowing one business with proximity issues to stay open while another 25 Unofficial Copy business with similar or even identical proximity issues was ordered completely closed (calling into question the second prong of strict scrutiny: least restrictive means). Additionally, even now restaurants, bars, and numerous other services have their capacity limited to 25% or 50% while bicycle shops, liquor stores, pool cleaning services and numerous others have been 100% opened at all times since Abbott declared his emergency disaster. Wal-Mart, HEB, Home Depot, Amazon and other businesses have experienced record increases in sales during the COVID19 pandemic, while small business owners have been forever closed due to Governor Abbott’s COVID-19 lottery. "[E]qual protection challenges under the Texas Constitution are reviewed under a multi-tiered system. Richards v. LULAC, 868 S.W.2d 306, 310-11 (Tex. 1993)(citations omitted). Generally, the classification under challenge must be rationally related to a legitimate state purpose. Id. The general rule becomes more strident, however, when the classification impinges on the exercise of a fundamental right, or when the classification distinguishes between people, in terms of any right, on a 'suspect' basis such as race or national origin. In those instances, the state action is subjected to strict scrutiny, requiring that the classification be narrowly tailored to serve a compelling government interest." Here, Governor Abbott’s conduct infringes on fundamental rights found in Article I, § 19. DEPRIVATION OF LIFE, 26 Unofficial Copy LIBERTY, PROPERTY, ETC. BY DUE COURSE OF LAW. Strict scrutiny analysis must therefore be met by the state or the orders are unconstitutional. Because Governor Abbott’s executive orders cannot pass this analysis, they must be declared void. Accordingly, Relators are requesting that this Court grant their Petition for Writ of Mandamus and enjoin and/or restrain Governor Abbott’s COVID-19 related executive orders. CONCLUSION Governor Abbott’s numerous executive orders related to the COVID-19 pandemic violate the Texas Constitution including, art. I, sec. 28, art. I, sec. 19, art. I sec. 3, art. II, sec. 1, and art. IV, sec. 8. Texas Government Code §418 is unconstitutional on its face and as applied because it is an improper delegation of legislative authority expressly prohibited by Texas Constitution, Art. II, §1. The subject executive orders issued by Governor Abbott are facially unconstitutional because they are founded on §418 (an unconstitutional statute) and because they purport to exercise the power to suspend laws which authority is reserved exclusively to the legislature. Texas Constitution, Art. I, §28. Finally, even if the executive orders were founded upon legitimate constitutional authority (which they are not), they are unconstitutional as applied because they were instituted without due process, violate equal protection, and are 27 Unofficial Copy composed of provisions that are arbitrary, capricious, and which are not the least restrictive means for advancing the government’s purported compelling interest (i.e., protecting public health). Accordingly, Relators respectfully request this Court grant their Emergency Petition for Writ of Mandamus. Respectfully Submitted, /s/Jared Woodfill Jared Woodfill Woodfill Law Firm, P.C. State Bar No. 00788715 3 Riverway, Ste. 750 Houston, Texas 77056 (713)751-3080 (Telephone) (713)751-3058 (Facsimile) woodfillservice@gmail.com 28 Unofficial Copy CERTIFICATE OF COMPLIANCE I hereby certify that the foregoing brief has been compiled using a computer program in Word with 14-point font conventional typeface for the body of the brief and 12-point font for footnotes. Excluding the portions of the brief not counted by Tex. R. App. P. 9, this brief contains 4,471 words. /s/ Jared Woodfill Jared Woodfill 29 Unofficial Copy CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing petition was delivered to the following persons by the methods indicated below on May 28, 2020: Honorable Greg Abbott Governor of Texas c/o Hon. Kenneth Paxton, Texas Attorney General P.O. Box 12548 Austin, Texas 78711-2548 Phone: (512) 463-2100 Respondent /s/ Jared R. Woodfill Jared R. Woodfill 30 Unofficial Copy APPENDIX Unofficial Copy TAB A Unofficial Copy CAUSE NO. D-1-GN-20-002146 STEVEN HOTZE, MD., et al. Plaintiffs, v. GREG ABBOTT, in his official capacity as Governor of the State of Texas, et al., Defendants. § § § § § § § § § § 5/14/2020 4:31 PM Velva L. Price District Clerk Travis County D-1-GN-20-002146 Irene Silva IN THE DISTRICT COURT OF TRAVIS COUNTY, TEXAS 98th JUDICIAL DISTRICT DEFENDANTS’ PLEA TO THE JURISDICTION AND GENERAL DENIAL INTRODUCTION 1. This action is moot. Plaintiffs challenge two COVID-19 Executive Orders, GA-08 and GA-14, on the grounds that these orders allegedly violated Plaintiffs’ rights to attend and hold in-person religious services. But GA-08 expired on March 31, 2020, when it was superseded by GA-14. And GA-14 expired on April 17, 2020, when it was superseded by Executive Order GA-16. Plaintiffs have no live controversy against these defunct orders. 2. Plaintiffs also lack standing. This is largely because this action was based on their misreading of GA-08 and GA-14 and thus was meritless to begin with. 3. Governor Abbott and Attorney General Paxton are unwavering defenders of all persons’ religious freedoms. COVID-19 did not change this fact. Neither GA-08 nor GA-14 limited a person’s ability to attend or hold in-person religious services. Indeed, GA-14 explicitly classifies “religious services conducted in churches, congregations, and houses of worship” as “essential services” exempt from 1 Unofficial Copy the order’s restrictions. These orders, and their successors, merely provide nonbinding recommendations on how houses of worship can safely reopen given the threats posed by COVID-19. Such nonbinding guidelines did not infringe on Plaintiffs’ religious freedoms. Plaintiffs present no allegations remotely explaining how they can have a legally cognizable injury under the circumstances. 4. There are other jurisdictional problems with this action, but these are the most salient. Plaintiffs’ action is clearly non-justiciable. It should be dismissed. BACKGROUND 5. Chapter 418 of the Texas Government Code gives the Governor the responsibility to “meet[] the dangers to the state and people presented by disasters.” 1 It also confers numerous powers to help the Governor accomplish that task, including the powers to suspend statutes, issue executive orders carrying the force of law, and control the movement of persons. 2 6. On March 12, 2020, Governor Abbott declared a state of disaster in Texas due to the imminent threat posed by COVID-19. 3 7. On March 19, 2020, Governor Abbott issued GA-08, which limited various social gatherings to reduce the spread of COVID-19. 4 GA-08 imposed no restrictions on persons attending or holding religious services. 5 TEX. GOV’T CODE § 418.011. See id. at §§ 418.011–418.026. 3 Ex. A. 4 Id. 5 See id. 1 2 2 Unofficial Copy 8. On March 31, 2020 Governor Abbott issued GA-14, which superseded GA-08. 6 Generally speaking, GA-14 required non-essential persons to minimize social gatherings to help contain the threat posed by COVID-19. 7 But persons providing “essential services”—a term which included persons providing “religious services conducted in churches, congregations, and houses of worship”—were exempt from this restriction. 8 GA-14 notes that such essential persons should follow CDCrecommended guidelines but it did not require them to do so. 9 9. On April 17, 2020, Governor Abbott issued GA-16, which modified GA- 14 to allow certain non-essential services to partially reopen. 10 GA-16 superseded GA14. 11 Like its predecessor, GA-16 stated that essential services such as houses of worship should follow CDC guidelines. 12 10. To remove all doubt on the issue, on April 21, 2020, the Governor and Attorney General issued joint Guidance for Houses of Worship During the COVID-19 Crisis (“Joint Guidance”). 13 The Joint Guidance provides certain nonbinding guidelines for the safe operation of religious services. 14 The Joint Guidance explicitly states that its “guidelines make only recommendations to houses of worship.” 15 Ex. B. Id. 8 Id. 9 Id. 10 Ex. C. 11 Id. 12 Id. 13 Ex. D. 14 Id. 15 Id. 6 7 3 Unofficial Copy 11. On April 27, 2020, Governor Abbott issued Executive Order GA-18, which expanded the businesses that could re-open. 16 GA-18 superseded GA-16. 17 GA18 explicitly states that its “conditions and limitations . . . shall not apply to essential services” such as “churches, congregations, and houses of worship.” 18 After issuing GA-18, the Governor and Attorney General updated their nonbinding guidelines for houses of worship in a manner consistent with their prior Joint Guidance. 19 12. In short, GA-08 expired on March 31, 2020 and GA-14 expired on April 17, 2020. Neither GA-08 nor GA-14 limited a person’s ability to hold or attend inperson religious services. These orders’ successors, GA-16 and GA-18, also contained no such restrictions on individuals’ religious freedoms. PLEA TO THE JURISDICTION 13. A plea to the jurisdiction challenges the court’s authority to determine the subject matter of the controversy. 20 “Subject matter jurisdiction is essential to the authority of a court to decide a case.” 21 Plaintiffs’ action is non-justiciable for numerous reasons. 14. Mootness: “[A] case becomes moot during the pendency of the litigation ‘if, since the time of filing, there has ceased to exist a justiciable controversy between the parties—that is, if the issues presented are not longer ‘live,’ or if the parties lack Ex. E. Id. 18 Id. 19 See Ex. F. 20 Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553–54 (Tex. 2000). 21 Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993). 16 17 4 Unofficial Copy a legally cognizable interest in the outcome.’” 22 Here, Plaintiffs seek injunctive and declaratory relief to prevent the continued enforcement of GA-08 and GA-14. 23 But, as explained above, GA-08 and GA-14 expired and are no longer in effect. 24 Thus, Plaintiffs’ action is moot and should be dismissed. 15. Standing: To have standing, a plaintiff must have: (1) suffered an “injury in fact”; (2) that is fairly traceable to the defendant’s acts; and (3) that is likely to be redressed by a favorable decision. 25 Plaintiffs’ action fails each of the three standing prongs. 16. Plaintiffs cannot satisfy the injury-in-fact and traceability requirements. Neither GA-08 nor GA-14 limited a person’s ability to hold or attend in-person religious services. 26 Thus, these orders could not have feasibly injured Plaintiffs’ exercise of their religious freedoms. Plaintiffs fail to allege a single incident where they were unable to hold or attend an in-person religious service due to GA-08 or GA-14. 27 17. Plaintiffs’ action also fails on redressability grounds. The Supreme Court of Texas, in a similar action challenging a COVID-19-related executive order, recently acknowledged that Governor Abbott and Attorney General Paxton do not enforce these orders. 28 Rather, that task falls to local district attorneys. 29 Thus, Glassdoor, Inc. v. Andra Group, LP, 575 S.W.3d 523, 527 (Tex. 2019) (quoting Heckman v. Williamson Cty., 369 S.W. 3d 137, 162 (Tex. 2012)), reh'g denied (June 21, 2019). 23 See, e.g., Petition (“Pet.”), pgs. 26–29. 24 Supra, Background. 25 Heckman, 369 S.W.3d at 154–55. 26 See Exs. A–B. 27 See Pet., pgs. 9–29. 28 See In re Abbott, 20-0291, 2020 WL 1943226, at *7 (Tex. Apr. 23, 2020). 29 Id. 22 5 Unofficial Copy enjoining Defendants Abbott and Paxton from enforcing GA-08 and GA-14 will not redress Plaintiffs’ injuries, as these individuals were not responsible for enforcing these orders in the first place. 18. Plaintiffs lack standing to bring this suit. This action should be dismissed. 19. TEX. GOV’T CODE § 22.002(c): Under Texas law, only the Supreme Court of Texas has original jurisdiction over actions to enjoin officers of the executive department. Accordingly, this Court lacks subject matter jurisdiction over Plaintiffs’ claims for injunctive relief. 20. Texas Government Code § 22.002(c) states: Only the supreme court has the authority to issue a writ of mandamus or injunction, or any other mandatory or compulsory writ or process, against any of the officers of the executive departments of the government of this state to order or compel the performance of a judicial, ministerial, or discretionary act or duty that, by state law, the officer or officers are authorized to perform. 21. Section 22.002(c) applies to any conceivable injunction that may be directed to Defendants Abbott or Paxton, who together hold two of the six executive offices recognized by the Texas Constitution. 30 As the Supreme Court of Texas explained in A & T Consultants, Inc. v. Sharp, given § 22.002(c), “district courts generally have no jurisdiction over executive officer respondents” to issue a writ of mandamus to compel those officers to perform duties imposed by law. 31 The Court 30 31 TEX. CONST. art. IV, § 1. 904 S.W.2d 668, 672 (Tex. 1995). 6 Unofficial Copy should dismiss this action due to its lack of subject matter jurisdiction over the dispute. 22. No Statutory Notice: Plaintiffs brought a claim under the Texas Religious Freedom Restoration Act (“TRFRA”). 32 But the TRFRA requires a prospective plaintiff to provide the government agency with written notice of the claim by certified mail at least 60 days prior to bringing the action. 33 Plaintiffs did not provide the required pre-suit notice. 23. An exception to the TRFRA’s pre-suit notice requirement applies if: “(1) the exercise of government authority that threatens to substantially burden the person’s free exercise of religion is imminent; and (2) the person was not informed and did not otherwise have knowledge of the exercise of the governmental authority in time to reasonably provide the notice.” 34 This exception is impossible to meet under the circumstances. Neither GA-08 nor GA-14 impacted an individual’s ability to attend or hold in-person religious services, and thus it never realistically “threaten[ed] to substantially burden [a] person’s free exercise of religion.”35 Plaintiffs allege no plausible facts even remotely suggesting that they were injured by these two orders. 24. The TRFRA’s “pre-suit notice requirements are jurisdictional.” 36 Plaintiffs, as the initial pleader, had the burden to “allege[] facts that affirmatively Pet., pgs. 25–26. TEX. CIV. PRAC. & REM. CODE § 110.006(a). 34 Id. at § 110.006(b). 35 Id. 36 Morgan v. Plano Indep. Sch. Dist., 724 F.3d 579, 586 (5th Cir. 2013). 32 33 7 Unofficial Copy demonstrate the court’s jurisdiction to hear the cause.” 37 Plaintiffs, who ignored the TRFRA pre-suit notice issue, failed to meet this burden. Thus, their TRFRA claim should be dismissed. GENERAL DENIAL 25. Defendants hereby deny each and every, all and singular the allegations of Plaintiffs’ Original Petition and require strict proof thereof. DEFENSES 26. Defendants assert the following defenses and reserve the right to supplement or amend this answer to include defenses throughout the course of this lawsuit: 37 a. Plaintiffs’ claims have no basis in law or in fact; b. Plaintiffs unjustifiably failed to provide the 60-day pre-suit notice required by the TRFRA; c. Defendants acted within their legal authority at all times relevant here; d. Plaintiffs’ claims are barred by the doctrine of sovereign immunity; e. Plaintiffs’ claims are barred by the doctrine of qualified/official immunity; f. Plaintiffs lack standing to sue Defendants; g. Plaintiffs’ action is moot; and h. Defendants reserve the right to assert further defenses as they become evident through discovery or investigation. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). 8 Unofficial Copy PRAYER Defendants pray that Plaintiffs take nothing by their suit, that all costs be taxed and adjudged against Plaintiffs, and that Defendants be granted such other and further relief to which they justly may be entitled. Respectfully submitted. KEN PAXTON Attorney General of Texas JEFFREY C. MATEER First Assistant Attorney General RYAN L. BANGERT Deputy First Assistant Attorney General DARREN L. MCCARTY Deputy Attorney General for Civil Litigation THOMAS A. ALBRIGHT Chief for General Litigation Division /s/ Todd Dickerson Todd Dickerson Assistant Attorney General Texas Bar No. 24118368 General Litigation Division P.O. Box 12548, Capitol Station Austin, Texas 78711-2548 Tel.: (512) 475-4082 Fax: (512) 320-0667 todd.dickerson@oag.texas.gov COUNSEL FOR DEFENDANTS 9 Unofficial Copy CERTIFICATE OF SERVICE I hereby certify that on May 14, 2020, a true and correct copy of the foregoing instrument has been served in accordance with Tex. R. Civ. P. 21a via the Court’s electronic filing manager to all counsel of record. /s/ Todd Dickerson Todd Dickerson Assistant Attorney General 10 Unofficial Copy TAB Unofficial Copy GOVERNOR GREG ABBOTT March 13, 2020 FILED IN THE OFFICE OF THE SECRETARY OF STATE \l~tt:> lt-V"'- O'CLOCK The Honorable Ruth R. Hughs Secretary of State State Capitol Room lE.8 Austin, Texas 78701 Dear Secretary Hughs: Pursuant to his powers as Governor of the State of Texas, Greg Abbott has issued the following: A proclamation certifying that COVID-19 poses an imminent threat of disaster in the state and declaring a state of disaster for all counties in Texas. The original proclamation is attached to this letter of transmittal. n to the Governor Attachment POST OFFICE Box 12428 AUSTIN, TEXAS 78711512-463-2000 (VOICE) DIAL 7-1-1 FOR RELAY SERVICES Unofficial Copy PROCLAMATION BY THE TO ALL TO WHOM THESE PRESENTS SHALL COME: WHEREAS, the novel coronavirus (COVID-19) has been recognized globally as a contagious respiratory virus; and WHEREAS, as of March 13, 2020, there are more than 30 confirmed cases ofCOVID-19 located in multiple Texas counties; and WHEREAS, there are more than 50 Texans with pending tests for COVID-19 in Texas; and WHEREAS, some schools, universities, and other governmental entities are beginning to alter their schedules, and some venues are beginning to temporarily close, as precautionary responses to the increasing presence of COVID-19 in Texas; and WHEREAS, costs incurred to prepare for and respond to COVID-19 are beginning to mount at the state and local levels; and WHEREAS, the State of Texas has already taken numerous steps to prepare for COVID19, such as increasing laboratory testing capacity, coordinating preparedness efforts across state agencies, and working with local partners to promote appropriate mitigation efforts; and WHEREAS, it is critical to take additional steps to prepare for, respond to, and mitigate the spread of COVID-19 to protect the health and welfare of Texans; and WHEREAS, declaring a state of disaster will facilitate and expedite the use and deployment of resources to enhance preparedness and response. NOW, THEREFORE, I, GREG ABBOTT, Governor of the State of Texas, do hereby certify that COVID-19 poses an imminent threat of disaster. In accordance with the authority vested in me by Section 418.014 of the Texas Government Code, I hereby declare a state of disaster for all counties in Texas. Pursuant to Section 418.017 of the code, I authorize the use of all available resources of state government and of political subdivisions that are reasonably necessary to cope with this disaster. Pursuant to Section 418.016 of the code, any regulatory statute prescribing the procedures for conduct of state business or any order or rule of a state agency that would in any way prevent, hinder, or delay necessary action in coping with this disaster shall be suspended upon written approval of the Office of the Governor. However, to the extent that the enforcement of any state statute or administrative rule regarding contracting or procurement would impede any state agency's emergency response that is necessary to cope with this declared disaster, I hereby suspend such statutes and rules for the duration of this declared disaster for that limited purpose. In accordance with the statutory requirements, copies of this proclamation shall be filed FILED IN THE OFFICE OF THE SECRETARY OF STATE II :2.oA-N\ O'CLOCK MAR 1 3 2020 Unofficial Copy Governor Greg Abbott March 13, 2020 Proclamation Page 2 with the.applicable authorities. IN TESTIMONY WHEREOF, I have hereunto signed my name and have officially caused the Seal of State to be affixed at my office in the City of Austin, Texas, this the 13th day of March, 2020. GREG ABBOTT Governor ATTESTED BY: RUTH R. HUGHS Secretary of State FILED IN THE OFFICE OF THE SECRETARY OF STATE II : ~ ,4vi-, O'CLOCK MAR 13 2020 Unofficial Copy TAB Unofficial Copy GOVERNOR GREG ABBOTT March 19, 2020 FILED IN THE OFFICE OF THE SECRETARY OF STATE 11 :S'j t\"k.-.. O'CLOCt( The Honorable Ruth R. Hughs Secretary of State State Capitol Room lE.8 Austin, Texas 7870 l �' Dear Secretary Hughs: Pursuant to his powers as Governor of the State of Texas, Greg Abbott has issued the following: Executive Order No. GA-08 relating to COVID-19 preparedness and mitigation. The original executive order is attached to this letter of transmittal. Respectfully submitted, s v-----___ · son rk to the Governor Attachment POST OFFICE Box 12428 AUSTIN, TEXAS 78711 512-463-2000 (VOICE) DIAL 7-1-1 FOR RELAY SERVICES Unofficial Copy BY THE GOVERNOR OF THE STATE OF TEXAS Executive Department Austin, Texas March 19, 2020 EXECUTIVE ORDER GAOS Relating to COVID-19 preparedness and mitigation. WHEREAS, the novel coronavirus (COVID-19) has been recognized globally as a contagious respiratory virus; and WHEREAS, I, Greg Abbott, Governor of Texas, issued a disaster proclamation on March 13, 2020, certifying that COVID-19 poses an imminent threat of disaster for all counties in the state of Texas; and WHEREAS, COVID-19 continues to spread and to pose an increasing, imminent threat of disaster throughout Texas; and WHEREAS, the Centers for Disease Control and Prevention (CDC) has advised that person-to-person contact heightens the risk of COVID-19 transmission; and WHEREAS, the President's Coronavirus Guidelines for America, as promulgated by President Donald J. Trump and the CDC on March 16, 2020, call upon Americans to slow the spread of COVID-19 by avoiding social gatherings in groups of more than 10 people, using drive-thru, pickup, or delivery options at restaurants and bars, and avoiding visitation at nursing homes, among other steps; and WHEREAS, the Texas Department of State Health Services has now determined that, as of March 19, 2020, COVID-19 represents a public health disaster within the meaning of Chapter 81 of the Texas Health and Safety Code; and WHEREAS, under the Texas Disaster Act of 1975, "[t]he governor is responsible for meeting . . . the dangers to the state and people presented by disasters" (Section 418.001 of the Texas Government Code), and the legislature has given the governor broad authority to fulfill that responsibility. NOW, THEREFORE, I, Greg Abbott, Governor of Texas, by virtue of the power and authority vested in me by the Constitution and laws of the State of Texas, do hereby order the following on a statewide basis effective 11 :59 p.m. on March 20, 2020, and continuing until 11 :59 p.m. on April 3, 2020, subject to extension thereafter based on the status of COVID-19 in Texas and the recommendations of the CDC: FILED IN THE OFFICE OF THE SECRETARY OF STATE ll~ Se>o.,,,. O'CLOCK MAR 19 2020 Unofficial Copy Governor Greg Abbott March 19, 2020 Executive Order GA-08 Page 2 Order No. 1 In accordance with the Guidelines from the President and the CDC, every person in Texas shall avoid social gatherings in groups of more than 10 people. Order No. 2 In accordance with the Guidelines from the President and the CDC, people shall avoid eating or drinking at bars, restaurants, and food courts, or visiting gyms or massage parlors; provided, however, that the use of drive-thru, pickup, or delivery options is allowed and highly encouraged throughout the limited duration of this executive order. Order No . 3 In accordance with the Guidelines from the President and the CDC, people shall not visit nursing homes or retirement or long-term care facilities unless to provide critical assistance. Order No. 4 In accordance with the Guidelines from the President and the CDC, schools shall temporarily close. This. executive order does not prohibit people from visiting a variety of places, including grocery stores, gas stations, parks, and banks, so long as the necessary precautions are maintained to reduce the transmission of COVID-19. This executive order does not mandate sheltering in place. All critical infrastructure will remain operational, domestic travel will remain unrestricted, and government entities and businesses will continue providing essential services. For offices and workplaces that remain open, employees should practice good hygiene and, where feasible, work from home in order to achieve optimum isolation from COVID-19. The more that people reduce their public contact, the sooner COVID-19 will be contained and the sooner this executive order will expire. This executive order supersedes all previous orders on this matter that are in conflict or inconsistent with its terms, and this order shall remain in effect and in full force until 11 :59 p.m. on April 3, 2020, subject to being extended, modified, amended, rescinded, or superseded by me or by a succeeding governor. Given under my hand this the 19th day of March, 2020. GREG ABBOTT Governor Secretary of State FILED IN THE OFFICE OF THE SEC~ARY OF STATE \ I :_s:, M1 O'CLOCK MAR 19 2020 Unofficial Copy TAB Unofficial Copy GOVERNOR GREG ABBOTT FILED IN THE OFFICE OF THE SECRETARY OF STATE 2. fl'V\ O'CLOCK March 31, 2020 The Honorable Ruth R. Hughs Secretary of State State Capitol Room lE.8 Austin, Texas 78701 Dear Secretary Hughs: Pursuant to his powers as Governor of the State of Texas, Greg Abbott has issued the following: Executive Order No. GA-14 relating to statewide continuity of essential services and activities during the COVID-19 disaster. The original executive order is attached to this letter of transmittal. Respectfully submitted, ~ Sv------ . · son Clerk to the Governor Attachment POST OFFICE Box 12428 AUSTIN, TEXAS 78711512-463-2000 (VOICE) DIAL 7-1-1 FOR RELAY SERVICES Unofficial Copy BY THE GOVERNOR OF THE STATE OF TEXAS Executive Department Austin, Texas March 31, 2020 EXECUTIVE ORDER GA14 Relating to statewide continuity of essential services and activities during the COVID-19 disaster. WHEREAS, I, Greg Abbott, Governor of Texas, issued a disaster proclamation on March 13, 2020, certifying under Section 418.014 of the Texas Government Code that the novel coronavirus (COVID-19) poses an imminent threat of disaster for all counties in the State of Texas; and WHEREAS, the Commissioner of the Texas Department of State Health Services (DSHS), Dr. John Hellerstedt, has determined that COVID-19 represents a public health disaster within the meaning of Chapter 81 of the Texas Health and Safety Code; and WHEREAS, I have issued numerous executive orders and suspensions of Texas laws in response to the COVID-19 disaster, aimed at protecting the health and safety of Texans and ensuring an effective response to this disaster; and WHEREAS, I issued Executive Order GA-08 on March 19, 2020, mandating certain obligations for Texans in accordance with the President's Coronavirus Guidelines for America, as promulgated by President Donald J. Trump and the Centers for Disease Control and Prevention (CDC) on March 16, 2020, which called upon Americans to take actions to slow the spread of COVID-19 for 15 days; and WHEREAS, Executive Order GA-08 is subject to expiration at 11:59 p.m. on April 3, 2020, absent further action by the governor; and WHEREAS, on March 29, 2020, to avoid scenarios that could lead to hundreds of thousands of deaths, the President announced that, based on advice from Dr. Anthony Fauci and Dr. Deborah Birx, the restrictive social-distancing Guidelines should extend through April 30, 2020; and WHEREAS, DSHS Commissioner Dr. Hellerstedt and White House Coronavirus Response Coordinator Dr. Birx say that the spread of COVID-19 can be reduced by minimizing social gatherings;. and WHEREAS, on March 28, 2020, the U.S . Department of Homeland Security issued its Guidance on the Essential Critical Infrastructure Workforce, Version 2.0, which provides an advisory list of critical-infrastructure sectors, workers, and functions that should continue during the COVID19 response; and WHEREAS, for state agencies and their employees and agents, the Office of the Attorney General of Texas has advised that local restrictions issued in response to the COVID-19 disaster do not apply to restrict the conduct of state business; and FILED IN THE Ofl·/\;c uF THE SECRETARY OF STATE 2.fM O'CLOCK MAR 3 1 2020 Unofficial Copy Governor Greg Abbott March 3 1, 2020 Executive Order GA-14 Page 2 WHEREAS, all government entities and businesses should be allowed to continue providing essential services during the COVID-19 disaster, and all critical infrastructure should be allowed to remain operational; and WHEREAS, the "governor is responsible for meeting . . . the dangers to the state and people presented by disasters" under Section 418.011 of the Texas Government Code, and the legislature has given the governor broad authority to fulfill that responsibility; and WHEREAS, under Section 418.012, the "governor may issue executive orders ... hav[ing] the force and effect of law;" and WHEREAS, under Section 418.016(a), the "governor may suspend the provisions of any regulatory statute prescribing the procedures for conduct of state business . . . if strict compliance with the provisions . . . would in any way prevent, hinder, or delay necessary action in coping with a disaster;" and WHEREAS, under Section 418.0 l 7(a), the "governor may use all available resources of state government and of political subdivisions that are reasonably necessary to cope with a disaster;" and WHEREAS, under Section 418.018(c), the "governor may control ingress and egress to and from a disaster area and the movement of persons and the occupancy of premises in the area;" and WHEREAS, under Section 418.173, failure to comply with any executive order issued during the COVID-19 disaster 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 fine and confinement. NOW, THEREFORE, I, Greg Abbott, Governor of Texas, by virtue of the power and authority vested in me by the Constitution and laws of the State of Texas, do hereby order the following on a statewide basis effective 12:01 a.m. on April 2, 2020, and continuing through April 30, 2020, subject to extension based on the status of COVID-19 in Texas and the recommendations of the CDC and the White House Coronavirus Task Force: In accordance with guidance from DSHS Commissioner Dr. Hellerstedt, and to achieve the goals established by the President to reduce the spread of COVID-19, every person in Texas shall, except where necessary to provide or obtain essential services, minimize social gatherings and minimize in-person contact with people who are not in the same household. "Essential services" shall consist of everything listed by the U.S. Department of Homeland Security in its Guidance on the Essential Critical Infrastructure Workforce, Version 2.0, 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). TDEM shall maintain an online list of essential services, as specified in this executive order and in any approved additions. Requests for additions should be directed to TDEM at EssentialServices@tdem.texas.gov or by visiting www .tdem.texas.gov/essentialservices. In providing or obtaining essential services, people and businesses should follow the Guidelines from the President and the CDC by practicing good hygiene, environmental cleanliness, and sanitation, implementing social distancing, and working from home if possible. In particular, all services should be provided through remote telework from FILED IN THE' OFFICE OP TM!! SECRETARY OF STATE :2.fM O'CLOCK MAR 3 1 2020 Unofficial Copy Executive Order GA-14 Page 3 Governor Greg Abbott March 31, 2020 home unless they are essential services that cannot be provided through remote telework. If religious services cannot be conducted from home or through remote services, they should be conducted consistent with the Guidelines from the President and the CDC by practicing good hygiene, environmental cleanliness, and sanitation, and by implementing social distancing to prevent the spread of COVID-19. In accordance with the Guidelines from the President and the CDC, people shall avoid eating or drinking at bars, restaurants, and food courts, or visiting gyms, massage establishments, tattoo studios, piercing studios, or cosmetology salons; provided, however, that the use of drive-thru, pickup, or delivery options for food and drinks is allowed and highly encouraged throughout the limited duration of this executive order. This executive order does not prohibit people from accessing essential services or engaging in essential daily activities, such as going to the grocery store or gas station, providing or obtaining other essential services, visiting parks, hunting or fishing, or engaging in physical activity like jogging or bicycling, so long as the necessary precautions are maintained to reduce the transmission of COVID-19 and to minimize inperson contact with people who are not in the same household. In accordance with the Guidelines from the President and the CDC, people shall not 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. In accordance with the Guidelines from the President and the CDC, schools shall remain temporarily closed to in-person classroom attendance and shall not recommence before May 4, 2020. This executive order shall supersede any conflicting order issued by local officials in response to the COVID-19 disaster, but only to the extent that such a local order restricts essential services allowed by this executive order or allows gatherings prohibited by this executive order. I hereby suspend Sections 418.1015(b) and 418.108 of the Texas Government Code, Chapter 81, Subchapter E of the Texas Health and Safety Code, and any other relevant statutes, to the extent necessary to ensure that local officials do not impose restrictions inconsistent with this executive order, provided that local officials may enforce this executive order as well as local restrictions that are consistent with this executive order. This executive order supersedes Executive Order GA-08, but not Executive Orders GA-09, GA10, GA-11, GA-12, or GA-13, and shall remain in effect and in full force until April 30, 2020, unless it is modified, amended, rescinded, or superseded by the governor. Given under my hand this the 31st day of March, 2020. GREG ABBOTT Governor FILED IN THE OFFICE OF THE SECRETARY OF STATE 2PM O'CLOCK MAR 3 1 2020 Unofficial Copy Governor Greg Abbott March 31, 2020 Executive Order GA-14 Page 4 Secretary of State FILED IN THE OFFlCE OF THE SECRETARY OF STATE 2. fM O'CLOCK MAR 3 1 2020 Unofficial Copy TAB Unofficial Copy GOVERNOR GREG ABBOTT April 27, 2020 FILED IN THE OFFICE OF THE SECRETARY OF STATE \ fM O'CLOCK The Honorable Ruth R. Hughs Secretary of State State Capitol Room lE.8 Austin, Texas 78701 lfip Secretary of State Dear Secretary Hughs: Pursuant to his powers as Governor of the State of Texas, Greg Abbott has issued the following: Executive Order No. GA-18 relating to the expanded reopening of services as part of the safe, strategic plan to Open Texas in response to the COVID-19 disaster. The original executive order is attached to this letter of transmittal. Respectfully submitted, Attachment POST OFFICE Box 12428 AUSTIN, TEXAS 78711512-463-2000 (VOICE) DIAL 7-1-1 FOR RELAY SERVICES Unofficial Copy BY THE GOVERNOR OF THE STATE OF TEXAS Executive Department Austin, Texas April 27, 2020 EXECUTIVE ORDER GA18 Relating to the expanded reopening of services as part of the safe, strategic plan to Open Texas in response to the COVID-19 disaster. WHEREAS, I, Greg Abbott, Governor of Texas, issued a disaster proclamation on March 13, 2020, certifying under Section 418.014 of the Texas Government Code that the novel coronavirus (COVID-19) poses an imminent threat of disaster for all counties in the State of Texas; and WHEREAS, on April 12, 2020, I issued a proclamation renewing the disaster declaration for all counties in Texas; and WHEREAS, the Commissioner of the Texas Department of State Health Services (DSHS), Dr. John Hellerstedt, has determined that COVID-19 represents a public health disaster within the meaning of Chapter 81 of the Texas Health and Safety Code, and renewed that determination on April 17, 2020; and WHEREAS, I have issued executive orders and suspensions of Texas laws in response to COVID-19, aimed at protecting the health and safety of Texans and ensuring an effective response to this disaster; and WHEREAS, I issued Executive Order GA-08 on March 19, 2020, mandating certain obligations for Texans in accordance with the President's Coronavirus Guidelines for America, as promulgated by President Donald J. Trump and the Centers for Disease Control and Prevention (CDC) on March 16, 2020, which called upon Americans to take actions to slow the spread of COVID-19 for 15 days; and WHEREAS, shortly before Executive Order GA-08 expired, I issued Executive Order GA-14 on March 31, 2020, based on the President's announcement that the restrictive social-distancing Guidelines should extend through April 30, 2020, in light of advice from Dr. Anthony Fauci and Dr. Deborah Birx, and also based on guidance by DSHS Commissioner Dr. Hellerstedt and Dr. Birx that the spread of COVID-19 can be reduced by minimizing social gatherings; and WHEREAS, Executive Order GA-14 superseded Executive Order GA-08 and expanded the social-distancing restrictions and other obligations for Texans that are aimed at slowing the spread of COVID-19, including by limiting social gatherings and in-person contact with people (other than those in the same household) to providing or obtaining "essential services," and by expressly adopting federal guidance that provides a list of critical-infrastructure sectors, workers, and functions that should continue as "essential services" during the COVID-19 response; and FILED IN THE OFFICE OF THE SECRETARY OF STATE O'CLOCK \ PN\ APR 2 7 2020 Unofficial Copy Governor Greg Abbott April 27, 2020 Executive Order GA-18 Page 2 WHEREAS, after more than two weeks of having in effect the heightened restrictions like those required by Executive Order GA-14, which have saved lives, it was clear that the disease still presented a serious threat across Texas that could persist in certain areas, but also that COVID-19 had wrought havoc on many Texas businesses and workers affected by the restrictions that were necessary to protect human life; and WHEREAS, on April 17, 2020, I therefore issued Executive Order GA-17, creating the Governor's Strike Force to Open Texas to study and make recommendations on safely and strategically restarting and revitalizing all aspects of the Lone Star State-work, school, entertainment, and culture; and WHEREAS, also on April 17, 2020, I issued Executive Order GA-16 to replace Executive Order GA-14, and while Executive Order GA-16 generally continued through April 30, 2020, the same social-distancing restrictions and other obligations for Texans according to federal guidelines, it offered a safe, strategic first step to Open Texas, including permitting retail pick-up and delivery services; and WHEREAS, Executive Order GA-16 is set to expire at 11:59 p.m. on April 30, 2020; and WHEREAS, Texas must continue to protect lives while restoring livelihoods, both of which can be achieved with the expert advice of medical professionals and business leaders; and WHEREAS, the "governor is responsible for meeting ... the dangers to the state and people presented by disasters" under Section 418.011 of the Texas Government Code, and the legislature has given the governor broad authority to fulfill that responsibility; and WHEREAS, under Section 418.012, the "governor may issue executive orders ... hav[ing] the force and effect of law;" and WHEREAS, under Section 418.016(a), the "governor may suspend the provisions of any regulatory statute prescribing the procedures for conduct of state business ... if strict compliance with the provisions ... would in any way prevent, hinder, or delay necessary action in coping with a disaster;" and WHEREAS, under Section 418.017(a), the "governor may use all available resources of state government and of political subdivisions that are reasonably necessary to cope with a disaster;" and WHEREAS, under Section 418.018(c), the "governor may control ingress and egress to and from a disaster area and the movement of persons and the occupancy of premises in the area;" and WHEREAS, under Section 418.173, failure to comply with any executive order issued during the COVID-19 disaster 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 fine and confinement. NOW, THEREFORE, I, Greg Abbott, Governor of Texas, by virtue of the power and authority vested in me by the Constitution and laws of the State of Texas, do hereby order the following on a statewide basis effective immediately, and continuing through May 15, 2020, subject to extension based on the status of COVID-19 in Texas and the FILED IN THE OFFICE OF THE SECRETARY OF STATE \ fM, O'CLOCK APR 2 7 2020 Unofficial Copy Governor Greg Abbott April 27, 2020 Executive Order GA-18 Page 3 recommendations of the Governor's Strike Force to Open Texas, the White House Coronavirus Task Force, and the CDC: In accordance with guidance from DSHS Commissioner Dr. Hellerstedt, and to achieve the goals _established by the President to reduce the spread of COVID-19, every person in Texas shall, except where necessary to provide or obtain essential services or reopened services, minimize social gatherings and minimize in-person contact with people who are not in the same household. People over the age of 65, however, 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, if leaving the home, to implement social distancing and to practice good hygiene, environmental cleanliness, and sanitation. "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). TDEM shall maintain an online list of essential services, as specified in this executive order and any approved additions. Requests for additions should be directed to TDEM at EssentialServices@tdem.texas.gov or by visiting the TDEM website at www. tdem. texas. gov/essentialservices. "Reopened services" shall consist of the following to the extent they are not already "essential services:" 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 (a) 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 (b) 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 foodcourt 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 (a) local public museums and local public libraries may so operate only if permitted by the local government, and (b) 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, and museums and libraries, as otherwise defined and limited above, may operate at up to 50 percent (as opposed to 25 percent) of FILED IN THE OFFICE OF THE SECR~TARY OF STATE \t:M O'CLOCK APR 2 7 2020 Unofficial Copy Governor Greg Abbott April 27, 2020 g) h) i) j) Executive Order GA-18 Page4 the total listed occupancy. Services provided by an individual working alone in an office. Golf course operations. Local government operations, including county and municipal governmental operations relating to permitting, recordation, and document-filing services, as determined by the local government. Such additional services as may be enumerated by future executive orders or proclamations by the governor. The conditions and limitations set forth above for reopened services shall not apply to essential services. Notwithstanding anything herein to the contrary, the governor may by proclamation identify any county or counties in which reopened services are thereafter prohibited, in the governor's sole discretion, based on the governor's determination in consultation with medical professionals that only essential services should be permitted in the county, including 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 services or reopened services, people and businesses should follow the minimum standard health protocols recommended by DSHS, found at www .dshs.texas.gov/coronavirus, and should implement social distancing, work from home if possible, and practice good hygiene, environmental cleanliness, and sanitation. This includes also following, to the extent not inconsistent with the DSHS minimum standards, the Guidelines from the President and the CDC, as well as other CDC recommendations. 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. Religious services should be conducted in accordance with the joint guidance issued and updated by the attorney general and governor. People shall 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 this executive order. This executive order does not prohibit people from accessing essential or reopened services or engaging in essential daily activities, such as going to the grocery store or gas station, providing or obtaining other essential or reopened services, visiting parks, hunting or fishing, or engaging in physical activity like jogging, bicycling, or other outdoor sports, so long as the necessary precautions are maintained to reduce the transmission of COVID-19 and to minimize in-person contact with people who are not in the same household. In accordance with the Guidelines from the President and the CDC, people shall not 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). Nursing homes, state supported living centers, assisted living facilities, and long-term care facilities should follow infection control policies and practices set forth by the HHSC, including minimizing the movement of staff between facilities whenever possible. In accordance with the Guidelines from the President and the CDC, schools shall remain temporarily closed to in-person classroom attendance by students and shall not FILED IN THE OFFICE OF THE SEC~TARY OF STATE I~ O'CLOCK APR 2 7 2020 Unofficial Copy Governor Greg Abbott April 27, 2020 Executive Order GA-18 Page 5 recommence before the end of the 2019-2020 school year. Public education teachers and staff are encouraged to continue to work remotely from home if possible, but may return to schools to conduct remote video instruction, as well as perform administrative duties, under the strict terms required by the Texas Education Agency. Private schools and institutions of higher education should establish similar terms to allow teachers and staff to return to schools to conduct remote video instruction and perform administrative duties when it is not possible to do so remotely from home. This executive order shall supersede any conflicting order issued by local officials in response to the COVID-19 disaster, but only to the extent that such a local order restricts essential services or reopened services allowed by this executive order, allows gatherings prohibited by this executive order, or expands the list of essential services or the list or scope of reopened services as set forth in this executive order. I hereby suspend Sections 418.1015(b) and 418.108 of the Texas Government Code, Chapter 81, Subchapter E of the Texas Health and Safety Code, and any other relevant statutes, to the extent necessary to ensure that local officials do not impose restrictions inconsistent with this executive order, provided that local officials may enforce this executive order as well as local restrictions that are consistent with this executive order. This executive order supersedes Executive Order GA-16, but does not supersede Executive Orders GA-10, GA-11, GA-12, GA-13, GA-15, or GA-17. This executive order shall remain in effect and in full force until 11 :59 p.m. on May 15, 2020, unless it is modified, amended, rescinded, or superseded by the governor. Given under my hand this the 27th day of April, 2020. GREG ABBOTT Governor UTHR.HUGHS Secretary of State FILED IN THE OFFICE OF THE SECR:TARY OF STATE \ r_M O'CLOCK APR 2 7 2020 Unofficial Copy TAB Unofficial Copy GOVERNOR GREG ABBOTT May 7, 2020 ['[LED IN Tl-:E OFFICE OF THE SECRl.:TARY OF STATE : S'S, O'CLOCK The Honorable Ruth R. Hughs Secretary of State State Capitol Room lE.8 Austin, Texas 78701 Dear Secretary Hughs: Pursuant to his powers as Governor of the State of Texas, Greg Abbott has issued the following: Executive Order No. GA-22 relating to confinement during the COVID-19 disaster. The original executive order is attached to this letter of transmittal. e Governor Attachment POST OFFICE Box 12428 AUSTIN, TEXAS 78711512-463-2000 (VOICE) DIAL 7-1-1 FOR RELAY SERVICES Unofficial Copy BY THE GOVERNOR OF THE STATE OF TEXAS Executive Department Austin, Texas May 7, 2020 EXECUTIVE ORDER GA22 Relating to confinement during the COVID-19 disaster. WHEREAS , I, Greg Abbott, Governor of Texas, issued a disaster proclamation on March 13, 2020, certifying under Section 418.014 of the Texas Government Code that the novel coronavirus (COVID-19) poses an imminent threat of disaster for all counties in the State of Texas; and WHEREAS, on April 12, 2020, I issued a proclamation renewing the disaster declaration for all counties in Texas ; and WHEREAS, I have issued executive orders and suspensions of Texas laws in response to COVID-19, aimed at protecting the health and safety of Texans and ensuring an effective response to this disaster; and WHEREAS, effective April 2, 2020, Executive Order GA-14 mandated certain socialdistancing restrictions and other obligations for Texans that were aimed at slowing the spread of COVID-19; and WHEREAS, on May 5, 2020, I issued Executive Order GA-21 to expand the services reopened in Texas to include cosmetology salons, hair salons, barber shops, nail salons/shops, and other establishments where licensed cosmetologists or barbers practice their trade; and WHEREAS, in coping with the COVID-19 disaster, and especially as seryices are being reopened in Texas in a safe, strategic manner, government officials should look for the least restrictive means of combatting the threat to public health; and WHEREAS, the "governor is responsible for meeting ... the dangers to the state and people presented by disasters" under Section 418.011 of the Texas Government Code, and the legislature has given the governor broad authority to fulfill that responsibility; and WHEREAS, under Section 418.012, the "governor may issue executive orders ... hav[ing] the force and effect of law ;" and WHEREAS, under Section 418.0l7(a), the "governor may use all available resources of state government and of political subdivisions that are reasonably necessary to cope with a disaster." NOW, THEREFORE, I, Greg Abbott, Governor of Texas, by virtue of the power and FILED IN THE OFFICE OF THE SECRETARY OF STATE 7: ~tl""I O'CLOCK MAYO 7 2020 Unofficial Copy Governor Greg Abbott May 7, 2020 Executive Order GA-22 Page 2 authority vested in me by the Constitution and laws of the State of Texas, do hereby order the following on a statewide basis effective immediately: Executive Order GA-21, as it pertains to cosmetology salons, hair salons, barber shops, nail salons/shops, and other establishments where licensed cosmetologists or barbers practice their trade, is hereby amended to immediately reopen, retroactive to April 2, 2020, such salons, shops, and establishments to the extent necessary to supersede and nullify the existence of any prior or existing state or local executive order, the violation of which could form the basis for confinement in jail. To the extent any order issued by local officials in response to COVID-19 would allow confinement in jail of a person inconsistent with Executive Order GA-21 or this executive order, that order is hereby superseded retroactive to April 2, 2020. All existing executive orders relating to COVID-19 are hereby amended to eliminate confinement in jail as an available penalty for any violation of the executive orders. No jurisdiction can confine a person in jail as a penalty for violating any executive order, or any order issued by local officials, in response to the COVID-19 disaster. To the extent any order issued by local officials in response to the COVID-19 disaster would allow confinement in jail, that order is hereby superseded, and I hereby suspend all relevant laws to the extent necessary to ensure that local officials do not confine people in jail for violating any order issued in response to the COVID-19 disaster. This amendment and suspension operates retroactively to April 2, 2020, and supersedes any contrary local or state order. This executive order shall remain in effect and in full force until modified, amended, rescinded, or superseded by the governor. Given under my hand this the 7th day of May, 2020. GREG ABBOTT Governor ltUTH R. HUGHS Secretary of State FILED IN THE OFFICE OF THE SECRETARY OF STATE 1 :J;s,11\.1 O'CLOCK MAYO 7 2020 Unofficial Copy TAB Unofficial Copy GOVERNOR GREG ABBOTT May 18, 2020 FILED IN THE OFFICE OF THE SECRETARY OF STATE '.3D IV\ O'CLOCK The Honorable Ruth R. Hughs Secretary of State State Capitol Room lE.8 Austin, Texas 78701 Secretary of State Dear Secretary Hughs: Pursuant to his powers as Governor of the State of Texas, Greg Abbott has issued the following: Executive Order No. GA-23 relating to the expanded opening of Texas in response to the COVID-19 disaster. The original executive order is attached to this letter of transmittal. Respectfully submitted, Attachment POST OFFICE Unofficial Copy Box 12428 AUSTIN, TEXAS 78711512-463-2000 (VOICE) DIAL 7-1-1 FOR RELAY SERVICES BY THE GOVERNOR OF THE STATE OF TEXAS Executive Department Austin, Texas May 18, 2020 EXECUTIVE ORDER GA23 Relating to the expanded opening of Texas in response to the COVID-19 disaster. WHEREAS, I, Greg Abbott, Governor of Texas, issued a disaster proclamation on March 13, 2020, certifying under Section 418.014 of the Texas Government Code that the novel coronavirus (COVID-19) poses an imminent threat of disaster for all counties in the State of Texas; and WHEREAS, I issued proclamations renewing the disaster declaration for all counties in Texas on April 12 and May 12, 2020; and WHEREAS, the Commissioner of the Texas Department of State Health Services (DSHS), Dr. John Hellerstedt, has determined on March 19, April 17, and May 15, 2020, that COVID-19 represents a public health disaster within the meaning of Chapter 81 of the Texas Health and Safety Code; and WHEREAS, I have issued executive orders and suspensions of Texas laws in response to COVID-19, aimed at protecting the health and safety of Texans and ensuring an effective response to this disaster; and WHEREAS, I issued Executive Order GA-08 on March 19, 2020, mandating certain obligations for Texans in accordance with the President's Coronavirus Guidelines for America, as promulgated by President Donald J. Trump and the Centers for Disease Control and Prevention (CDC) on March 16, 2020, which called upon Americans to take actions to slow the spread of COVID-19 for 15 days; and WHEREAS, I issued Executive Order GA-14 on March 31, 2020, based on the President's announcement that the restrictive Guidelines should extend through April 30, 2020, in light of advice from Dr. Anthony Fauci and Dr. Deborah Birx, and also based on guidance by DSHS Commissioner Dr. Hellerstedt and Dr. Birx that the spread of COVID-19 can be reduced by minimizing social gatherings; and WHEREAS, Executive Order GA-14 superseded Executive Order GA-08 and expanded the social-distancing restrictions and other obligations for Texans, aimed at slowing the spread of COVID-19 and protecting public health and safety; and WHEREAS, after more than two weeks of having in effect the heightened restrictions like those required by Executive Order GA-14, which had saved lives, it was clear that the disease still presented a serious threat across Texas that could persist in certain areas, but also that COVID-19 had wrought havoc on many Texas businesses and workers affected by the restrictions that were necessary to protect human life; and FILED IN THE OFFICE OF THE SECRETARY OF STATE I~ 1> o PIV\ O'CLOCK MAY 18 2020 Unofficial Copy Governor Greg Abbott May 18, 2020 Executive Order GA-23 Page 2 WHEREAS, on April 17, 2020, I therefore issued Executive Order GA-17, creating the Governor's Strike Force to Open Texas to study and make recommendations on safely and strategically restarting and revitalizing all aspects of the Lone Star State-work, school, entertainment, and culture; and WHEREAS, also on April 17, 2020, I issued Executive Order GA-16 to generally continue through April 30, 2020, the same social-distancing restrictions and other obligations for Texans according to federal guidelines, but also to offer a safe, strategic first step to Open Texas; and WHEREAS, I subsequently issued Executive Orders GA-18 and GA-21 on April 27 and May 5, 2020, respectively, to expand the services that are reopened in Texas; and WHEREAS, as normal business operations resume, everyone must act safely, and to that end Executive Orders GA-18 and GA-21, as well as this executive order, provide that all persons should follow the health protocols recommended by DSHS, which whenever achieved will mean compliance with the minimum standards fo~ safely reopening, but which should not be used to fault those who act in good faith but can only substantially comply with the standards in light of scarce resources and other extenuating COVID-19 circumstances; and WHEREAS, in coping with the COVD-19 disaster, and especially as services are being reopened in Texas, government officials should look for the least restrictive means of combatting the threat to public health; and WHEREAS, on May 7, 2020, I issued Executive Order GA-22 to remove confinement in jail as an available penalty for non-compliance with any state or local executive order issued in response to COVID-19; and WHEREAS, Texas must continue to protect lives while restoring livelihoods, both of which can be achieved with the expert advice of medical professionals and business leaders; and WHEREAS, the "governor is responsible for meeting ... the dangers to the state and people presented by disasters" under Section 418.011 of the Texas Government Code, and the legislature has given the governor broad authority to fulfill that responsibility; and WHEREAS, under Section 418.012, the "governor may issue executive orders ... hav[ing] the force and effect of law;" and WHEREAS, under Section 418.016(a), the "governor may suspend the provisions of any regulatory statute prescribing the procedures for conduct of state business ... if strict compliance with the provisions ... would in any way prevent, hinder, or delay necessary action in coping with a disaster;" and WHEREAS, under Section 418.017(a), the "governor may use all available resources of state government and of political subdivisions that are reasonably necessary to cope with a disaster;" and WHEREAS, under Section 418.018(c), the "governor may control ingress and egress to and from a disaster area and the movement of persons and the occupancy of premises in the area;" and FILED IN THE OFFICE OF THE SECRETARY OF STATE \ ~ ?» t> fM O'CLOCK MAY 18 2020 Unofficial Copy Governor Greg Abbott May 18, 2020 Executive Order GA-23 Page 3 WHEREAS, failure to comply with any executive order issued during the COVID-19 disaster is an offense punishable under Section 418.173 by a fine not to exceed $1,000, and may be subject to regulatory enforcement; NOW, THEREFORE, I, Greg Abbott, Governor of Texas, by virtue of the power and authority vested in me by the Constitution and laws of the State of Texas, do hereby order the following on a statewide basis effective immediately, and continuing through June 3, 2020, subject to extension based on the status of COVID-19 in Texas and the recommendations of the Governor's Strike Force to Open Texas, the White House Coronavirus Task Force, and the CDC: In accordance with guidance from DSHS Commissioner Dr. Hellerstedt, and to achieve the goals established by the President to reduce the spread of COVID-19, every person in Texas shall, except where necessary to provide or obtain Covered Services, minimize social gatherings and minimize in-person contact with people who are not in the same household. People over the age of 65, however, 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, if leaving the home, to implement social distancing and to practice good hygiene, environmental cleanliness, and sanitation. "Covered Services" shall consist of everything 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 3.0 or any subsequent version, plus religious services conducted in churches, congregations, and houses of worship. These covered services are not subject to the conditions and limitations, including occupancy or operating limits, set forth below for other covered services. "Covered Services" shall also consist of the following to the extent they are not already CISA services or religious services, subject to the conditions and limitations set forth below: 1. Retail services that may be provided through pick-up, delivery by mail, or delivery to the customer's doorstep. 2. In-store, non-CISA retail services, for retail establishments that operate at up to 25 percent of the total listed occupancy of the retail establishment. 3. Dine-in restaurant services, for restaurants that operate at up to 25 percent of the total listed occupancy of the restaurant, effective until 12:01 a.m. on Friday, May 22, 2020, when this provision is superseded by the provision set forth below for expanded dine-in restaurant services; provided, however, that a. this applies only to restaurants that have less than 51 percent of their gross receipts from the sale of alcoholic beverages; and b. any components of the restaurants that have interactive functions or exhibits, including child play areas, interactive games, and video arcades, must remain closed. 4. Movie theaters that operate at up to 25 percent of the total listed occupancy of any individual theater for any screening; provided, however, that components of the movie theaters that have video arcades or interactive games must remain closed. 5. 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, video arcades, and interactive displays and settings must FILED IN THE OFFICE OF THE SECRETARY OF STATE \: ?. ofM O'CLOCK MAY 18 2020 Unofficial Copy Governor Greg Abbott May 18, 2020 Executive Order GA-23 Page4 remain closed. 6. Museums and libraries that operate at up to 25 percent of the total listed occupancy; provided, however, that a. local public museums and local public libraries may so operate only if permitted by the local government; and b. any components of museums or libraries that have interactive functions or exhibits, including child play areas, must remain closed. 7. Golf course operations. 8. Local government operations, including county and municipal governmental operations relating to licensing (including marriage licenses), permitting, recordation, and document-filing services, as determined by the local government. 9. Wedding venues and the services required to conduct weddings; provided, however, that for weddings held indoors other than at a church, congregation, or house of worship, the facility may operate at up to 25 percent of the total listed occupancy of the facility. 10. Wedding reception services, for facilities that operate at up to 25 percent of the total listed occupancy of the facility. 11. Cosmetology salons, hair salons, barber shops, nail salons/shops, and other establishments where licensed cosmetologists or barbers practice their trade; provided, however, that all such salons, shops, and establishments must ensure at least six feet of social distancing between operating work stations. 12. Tanning salons; provided, however, that all such salons must ensure at least six feet of social distancing between operating work stations. 13. Swimming pools, as determined by each pool owner; provided, however, that a. indoor swimming pools may operate at up to 25 percent of the total listed occupancy of the pool facility; and b. outdoor swimming pools may operate at up to 25 percent of normal operating limits as determined by the pool owner. 14. Non-CISA services provided by office workers in offices that operate at up to the greater of (i) ten individuals, or (ii) 25 percent of the total office workforce; provided, however, that the individuals maintain appropriate social distancing. 15. Non-CISA manufacturing services, for facilities that operate at up to 25 percent of the total listed occupancy of the facility. 16. Gyms and exercise facilities and classes that operate at up to 25 percent of the total listed occupancy of the gym or exercise facility; provided, however, that locker rooms and shower facilities must remain closed, but restrooms may open. 17. Starting immediately for all Texas counties except Deaf Smith, El Paso, Moore, Potter, and Randall counties: a. Massage establishments and other facilities where licensed massage therapists or other persons licensed or otherwise authorized to practice under Chapter 455 of the Texas Occupations Code practice their trade; provided, however, that all such facilities must ensure at least six feet of social distancing between operating work stations. b. Personal-care and beauty services that have not already been reopened, such as tattoo studios, piercing studios, hair removal services, and hair loss treatment and growth services; provided, however, that (i) all such facilities must ensure at least six feet of social distancing between operating work stations; and (ii) to the extent such services are licensed or otherwise regulated by Texas law, such services may operate only as permitted by Texas law. c. Child-care services other than youth camps as described below; provided, however, that to the extent such services are licensed or otherwise regulated by Texas law, such services may operate only as permitted by Texas law. 18. Starting at 12:01 a.m. on Friday, May 22, 2020, for all Texas counties except Deaf FILED IN THE OFFICE OF THE SECRETARY OF STATE l! lo fth O'CLOCK MAY 18 2020 Unofficial Copy Governor Greg Abbott May 18, 2020 Executive Order GA-23 Page 5 Smith, El Paso, Moore, Potter, and Randall counties: a. Dine-in restaurant services, for restaurants that operate at up to 50 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 (ii) any components of the restaurants that have interactive functions or exhibits, including child play areas, interactive games, and video arcades, must remain closed. b. Bars and similar establishments that are not restaurants as defined above, that hold a permit from the Texas Alcoholic Beverage Commission, and that are not otherwise expressly prohibited in this executive order, for such establishments that operate at up to 25 percent of the total listed occupancy of the establishment; provided, however, that any components of the establishments that have interactive functions or exhibits, including child play areas, interactive games, and video arcades, must remain closed. c. Aquariums, natural caverns, and similar facilities (excluding zoos) that operate at up to 25 percent of the total listed occupancy or, for outdoor areas, at up to 25 percent of the normal operating limits as determined by the facility owner; provided, however, that (i) local public facilities may so operate only if permitted by the local government; and (ii) any components of the facilities that have interactive functions or exhibits, including child play areas, must remain closed. d. Bowling alleys, bingo halls, simulcast racing to the extent authorized by state law, and skating rinks that operate at up to 25 percent of the total listed occupancy of the establishment; provided, however, that (i) bowling alleys must ensure at least six feet of social distancing between operating lanes; and (ii) components of the establishments that have video arcades must remain closed. e. Rodeos and equestrian events that operate at up to 25 percent of the total listed occupancy or, for outdoor areas, at up to 25 percent of the normal operating limits as determined by the facility owner; provided, however, that this authorizes only the rodeo or equestrian event and not larger gatherings, such as county fairs, in which such an event may be held. f. Drive-in concerts, under guidelines that facilitate appropriate social distancing, that generally require spectators to remain in their vehicles, and that minimize in-person contact between people who are not in the same household or vehicle. g. Amateur sporting events (i) at which there is no access to the general public allowed; and (ii) for which all participants have tested negative for COVID-19 prior to the event, are quarantined for the duration of the event, are temperature-checked and monitored for symptoms daily, and are tested again for COVID-19 at the end of the event. 19. Starting at 12:01 a.m. on Friday, May 29, 2020, for Deaf Smith, El Paso, Moore, Potter, and Randall counties: a. All services that were restored for other Texas counties on Monday, May 18 and Friday, May 22, 2020, in numbers 17 and 18 above. 20. Starting at 12:01 a.m. on Friday, May 29, 2020, for all Texas counties: a. Outdoor areas of zoos that operate at up to 25 percent of the normal operating limits as determined by the zoo owner; provided, however, that (i) indoor areas of zoos, other than restrooms, must remain closed; (ii) any components of the zoos that have interactive functions or exhibits, including child play areas, must remain closed; and (iii) local public zoos may so operate only if permitted by the local government. 21. Starting at 12:01 a.m. on Sunday, May 31, 2020, for all Texas counties: FILED IN THE OFFICE OF THE SECRETARY OF STATE \ '.} o PM O'CLOCK MAY 1 8 2020 Unofficial Copy Governor Greg Abbott May 18, 2020 Executive Order GA-23 Page 6 a. Professional basketball, baseball, softball, golf, tennis, football, and car racing events, with no spectators physically present on the premises of the venue, as approved on a league-by-league basis by DSHS, in consultation with the Office of the Governor and any recommendations by the advisory Strike Force to Open Texas, based on whether the league has submitted a plan that applies to all events and that meets the minimum health and safety standards; provided, however, that each league must submit, along with a request for approval in the manner prescribed by DSHS, a plan that incorporates applicable minimum standard health protocols recommended by DSHS, as applicable, and such additional measures as are needed to ensure a safe plan for conducting the event. b. 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. c. Youth sports programs; provided, however, that practices may begin, but games and similar competitions may not begin until June 15, 2020. 22. 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 services, establishments, and facilities listed above with 25 percent occupancy or operating limits may, as otherwise defined and limited above, operate at up to 50 percent. 23. Such additional services as may be enumerated by future executive orders or proclamations by the governor. For the Covered Services listed above with limits based on "total listed occupancy," the total listed occupancy limits refer to the maximum occupant load set by local or state law, but for purposes of this executive order, staff members are not included in determining operating levels except for non-CISA manufacturing service providers and non-CISA services provided by office workers. The "total listed occupancy" limits do not apply to outdoor areas, events, facilities, or establishments. Additionally, valet services are prohibited except for vehicles with placards or plates for disabled parking. Notwithstanding anything herein to the contrary, the governor may by proclamation identify any county or counties in which Covered Services other than CISA services and religious services are thereafter prohibited, in the governor's sole discretion, based on the governor's determination in consultation with medical professionals that only CISA services and religious services should be permitted in the county, including 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 Covered Services, all persons (including individuals, businesses and other organizations, and any other legal entity) should use good-faith efforts and available resources to follow the minimum standard health protocols recommended by DSHS, found at www.dshs.texas.gov/coronavirus. All persons should also follow, to the extent not inconsistent with the DSHS minimum standards, the Guidelines from the President and the CDC, as well as other CDC recommendations. 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. Nothing in this executive order or the DSHS minimum standards precludes requiring a customer wishing to obtain services to follow additional hygiene measures. FILED IN THE OFFICE OF THE SECRETARY OF STATE t ~?, oP.v\ O'CLOCK MAY 1 8 2020 Unofficial Copy Governor Greg Abbott May 18, 2020 Executive Order GA-23 Page 7 Religious services should be conducted in accordance with the joint guidance issued and updated by the attorney general and governor. Nothing in this executive order, the DSHS minimum standards, or the joint guidance issued and updated by the attorney general and governor precludes churches, congregations, and houses of worship from using school campuses for their religious services or other allowed services. Except as specifically allowed above, people shall avoid visiting interactive amusement venues such as video arcades, amusement parks, or water parks, unless these enumerated establishments or venues are specifically added as a Covered Service by proclamation or future executive order of the governor. Notwithstanding anything herein to the contrary, the governor may by proclamation add to this list of establishments or venues that people shall avoid visiting. To the extent any of the establishments or venues that people shall avoid visiting also offer Covered Services permitted above, such as restaurant services, these establishments or venues can offer only the Covered Services and may not offer any other services. This executive order does not prohibit people from accessing Covered Services or engaging in safe daily activities, such as going to the grocery store or gas station; providing or obtaining other Covered Services; visiting swimming pools, parks, beaches, rivers, or lakes; hunting or fishing; attending youth club meetings or events; or engaging in physical activity like jogging, bicycling, or other outdoor sports, so long as the necessary precautions are maintained to reduce the transmission of COVID-19 and to minimize in-person contact with people who are not in the same household. In accordance with the Guidelines from the President and the CDC, people shall not visit nursing homes, state supported living centers, assisted living facilities, or longterm care facilities unless to provide critical assistance as determined through guidance from the Texas Health and Human Services Commission (HHSC). Nursing homes, state supported living centers, assisted living facilities, and long-term care facilities should follow infection control policies and practices set forth by the HHSC, including minimizing the movement of staff between facilities whenever possible. In accordance with the Guidelines from the President and the CDC, schools shall remain temporarily closed to in-person classroom attendance by students for the 2019-2020 school year, except for the following: 1. Public education students (accompanied by an adult if needed) may, as allowed by the school consistent with the minimum standard health protocols found in guidance issued by the Texas Education Agency (TEA), visit his or her school campus (a) for limited non-instructional administrative tasks such as cleaning out lockers, collecting personal belongings, and returning school items like band instruments and books; or (b) for graduating seniors, to complete post-secondary requirements that cannot be accomplished absent access to the school facility and its resources, excluding any activity or assessment which can be done virtually. 2. Beginning June 1, 2020, public school districts may offer, and public education students may accordingly visit school campuses for, in-person classroom instructional activities and learning options, such as summer school programs, special education evaluations, specialized assessments, and individualized tutoring, under the minimum standard health protocols found in guidance issued by the TEA. 3. Public education teachers and staff are encouraged to continue to work remotely FILED IN THE OFFICE OF THE SECRETARY OF STATE I~~ o fM O'CLOCK MAY 18 2020 Unofficial Copy Governor Greg Abbott May 18, 2020 Executive Order GA-23 Page 8 from home if possible, but may return to schools to conduct remote video instruction, to perform administrative duties, and, beginning June 1, 2020, to provide in-person classroom instructional activities and learning options as permitted and offered by school districts, under the minimum standard health protocols found in guidance issued by the TEA. 4. Private schools and institutions of higher education may reopen campuses and are encouraged to establish similar standards to allow students, teachers, and staff to return to schools for the limited purposes set forth above. 5. Notwithstanding anything herein to the contrary, schools may conduct graduation ceremonies consistent with the minimum standard health protocols found in guidance issued by the TEA. This executive order, as it pertains to cosmetology salons, hair salons, barber shops, nail salons/shops, and other establishments where licensed cosmetologists or barbers practice their trade, is retroactive to April 2, 2020, to the extent necessary to supersede and nullify the existence of any prior or existing state or local executive order, the violation of which could form the basis for confinement in jail. To the extent any order issued by local officials in response to COVID-19 would allow confinement in jail of a person inconsistent with this executive order or any prior state executive order, that order is superseded retroactive to April 2, 2020. All existing state executive orders relating to COVID-19 are amended to eliminate confinement in jail as an available penalty for any violation of the executive orders. No jurisdiction can confine a person in jail as a penalty for violating any executive order, or any order issued by local officials, in response to the COVID-19 disaster. To the extent any order issued by local officials in response to the COVID-19 disaster would allow confinement in jail, that order is superseded, and I hereby suspend all relevant laws to the extent necessary to ensure that local officials do not confine people in jail for violating any order issued in response to the COVD-19 disaster. This amendment and suspension operates retroactively to April 2, 2020, and supersedes any contrary local or state order. This executive order shall supersede any conflicting order issued by local officials in response to the COVID-19 disaster, but only to the extent that such a local order restricts Covered Services allowed by this executive order, allows gatherings prohibited by this executive order, or expands the list or scope of Covered Services as set forth in this executive order. I hereby suspend Sections 418.1015(b) and 418.108 of the Texas Government Code, Chapter 81, Subchapter E of the Texas Health and Safety Code, and any other relevant statutes, to the extent necessary to ensure that local officials do not impose restrictions in response to the COVID-19 disaster that are inconsistent with this executive order, provided that local officials may enforce this executive order as well as local restrictions that are consistent with this executive order. This executive order supersedes Executive Orders GA-21 and GA-22, but does not supersede Executive Orders GA-10, GA-13, GA-17, GA-19, or GA-20. This executive order shall remain in effect and in full force until 11 :59 p.m. on June 3, 2020, unless it is modified, amended, rescinded, or superseded by the governor. FILED IN THE OFFICE OF THE SECRETARY OF STATE l : 3of M O'CLOCK MAY 18 2020 Unofficial Copy Governor Greg Abbott May 18, 2020 Executive Order GA-23 Page 9 Given under my hand this the 18th day of May, 2020. GREG ABBOTT Governor UTHR. HUGHS Secretary of State FILED IN THE OFFICE OF THE SECRETARY OF STATE I: 3ofM. O'CLOCK MAY 18 2020 Unofficial Copy Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below: Jared Woodfill on behalf of Jared Woodfill Bar No. 00788715 woodfillservice@gmail.com Envelope ID: 43318445 Status as of 05/29/2020 09:27:30 AM -05:00 Case Contacts Name Email TimestampSubmitted Status Jared Woodfill woodfillservice@gmail.com 5/29/2020 9:18:58 AM SENT Ken Paxton ken.paxton@oag.texas.gov 5/29/2020 9:18:58 AM SENT Unofficial Copy BarNumber