After 4 Months, Freedom Caucus Calls For Limits To Governor’s Disaster Powers

Though his approval ratings remain high, not everyone is happy with Gov. Greg Abbott at the moment.

Some are calling for censure, as three Texas county GOP’s have done so far. A few are suing. Others, including some Democrats and some Republicans, are urging Abbott to call for a special session of the Legislature to address COVID-19 restrictions and responses.

The Texas Freedom Caucus, the right-most members of the Texas House of Representatives, are taking a different course entirely — calling for reforms in the next session to permanently address how long and how extensive a Governor’s executive order during a disaster may be.

“Although Texans were under the initial impression that this disaster would last but two weeks, nearly four months have passed,” wrote Rep. Mayes Middleton on behalf of the Freedom Caucus. “It is hard to see an end in sight, and we are not certain that the last order under this disaster has been written.”

The letter addresses the intent of the 1975 Disaster Act, which was written to give the Governor power to respond to hurricanes, tornadoes, floods, and other unforeseen calamities temporarily without having to call all 181 members of the Legislature back to Austin. But the four-month disaster order, Middleton claimed, is a disaster of its own:

“… The effects of these orders have caused families across the state to take massive financial hits, and in many cases caused businesses to permanently close their doors,” he wrote.” Family members have not seen each other in months, nor have they been able to care for their loved ones in nursing home communities. Gatherings have been restricted to under ten people, and business owners and individuals are subject to large fines for not wearing masks. Day after day, constituents fill our inboxes, flood our phone lines, and address us in person, begging for some sort of guidance on what they should do to keep their small businesses open, maintain their sanity, and try at a semblance of regular life without fear of government penalty.”

However, Abbott has not held on to all of the authority he could claim as part of the disaster declaration. As part of the recent statewide mask mandate order, Abbott placed an increased share of the authority on the laps of local officials. Mayors and County Judges now have the leeway to ban or permit gatherings of 10 people or more, for example.

Abbott has since urged local authorities to get “better” and “smarter” when it comes to how they respond to the COVID-19 situation. This week, Houston Mayor Sylvester Turner invoked his new authority to convince the conglomerate that operates city-owned facilities to cancel the Republican Party of Texas Convention, though lawsuits may soon intervene on the matter.

Abbott continues to use the disaster declaration as a means of directing federal resources to the local level.

“As Texas faces an increase in COVID-19 cases and hospitalizations, we remain committed to providing healthcare professionals with the resources they need to respond to this surge and support COVID-19 patients,” said Abbott in a press release announcing a sixth round of distributions of federally provided anti-viral drug remdesivir. “As we continue to combat the virus, Texas remains committed to keeping our communities healthy and safe.”

The members of the caucus are Middleton (chairman) and Reps. Matt Schaefer (vice chairman), Matt Krause, Kyle Biedermann, Briscoe Cain, Mike Lang, Matt Shaheen, Valoree Swanson, Tony Tinderholt, Steve Toth, and Bill Zedler.

The entirety of the Freedom Caucus letter, sent via email, is here and below.

Governor Abbott:

The health and safety of our fellow Texans facing the COVID-19
pandemic is unquestionably a matter of the highest priority. Actions must
be taken to address the threat. However, actions pressed with the force
of law need input from those elected to write laws. The separation of
lawmaking, law enforcement, and law interpretation are the foundational
checks and balances that make Texas and America exceptional in the
world. Many Texans fear that we have drifted away from those checks
and balances. The simple truth is that doing the right thing in the wrong
way causes harmful unintended consequences.

Over the course of the last four months, you have issued more than
twenty executive orders under the Texas Disaster Act of 1975. Although
many legislators, and even our own caucus, have criticized some of the
actions you have taken during the COVID-19 pandemic, we know that
you have undertaken each and every decision with painstaking care.
Regardless, the fact remains that the effects of these orders have caused
families across the state to take massive financial hits, and in many cases
caused businesses to permanently close their doors. Family members
have not seen each other in months, nor have they been able to care for
their loved ones in nursing home communities. Gatherings have been
restricted to under ten people, and business owners and individuals are
subject to large fines for not wearing masks. Day after day, constituents
fill our inboxes, flood our phone lines, and address us in person, begging
for some sort of guidance on what they should do to keep their small
businesses open, maintain their sanity, and try at a semblance of regular
life without fear of government penalty.

On March 19, you declared a statewide disaster and invoked your authority under the Texas
Disaster Act of 1975. Although Texans were under the initial impression that this disaster would
last but two weeks, nearly four months have passed. It is hard to see an end in sight, and we are
not certain that the last order under this disaster has been written. The 1975 law was written and
certainly intended to address temporary disasters—it was passed in the wake of Hurricane Carla
in 1961 and Hurricane Beulah in 1967, disasters whose consequences had clear ends in sight
regarding repairs of the physical and economic damage incurred. The law was not written,
however, to address a disaster of the magnitude or crisis of the length COVID-19 has turned out
to be. In fact, we do not believe that any prior Legislature could have possibly foreseen this specific
set of circumstances.

For disasters such as these, the drafters of the 1875 Constitution left the power in the executive to
call a special session of the Texas Legislature to determine ways to move forward. As you know,
many members of the Legislature, both inside and outside of our caucus, have called for such a
session to convene. But ultimately, the power lies in you, and you alone, to call a special session.
Our issue is not with the 1875 Texas Constitution, but with the Texas Disaster Act. Through our
painful conversations with constituents, it is abundantly clear to us that the Texas Disaster Act of
1975 must be heavily reformed.

We have spoken with many members of the Legislature about these needed reforms. One popular
proposal is to allow for a time limit on gubernatorial disaster declarations—for example, if a major
disaster affecting a large part of the state exceeds a certain number of days, the Legislature must
be called into session to address further actions. Another is to prohibit state agencies from
suspending or revoking business or professional licenses due to a disaster declaration. The ideas
we have debated and have heard from our colleagues are too numerous to include in this letter, but
we perceive that there is a near unanimous belief among legislators that this is a priority issue for
the legislature to discuss.

For the reasons mentioned above, we formally request that you place on the call reforms to the
Texas Disaster Act should you decide to call a special session of the Legislature, or as an
emergency item during the next regular session. Nothing at this point is more urgent. Reforms
such as these will allow all 181 members to have a say and a vote for their district in a crisis of
this magnitude, and us to do our duty to guard against overreach and protect liberty for all.
Governor Abbott, even with all of the struggles and trials of the past few months, we know we will
overcome this in the way we have since 1836—with tenacity and resolve. The spirit of Texans can
and will help our state make one of the biggest comebacks in the history of our nation and the
world. But we must work—together—toward that day. So, we ask you, Governor Abbott: Please
help us reform the Texas Disaster Act. It is the solution for which our constituents have been
asking.

For Texas,

Rep. Mayes Middleton
Chairman, Texas Freedom Caucus



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