Governor Abbott Takes Texas Independence Day To Loosen Mask Mandate

Texas Gov. Greg Abbott today issued an executive order repealing several of his previous COVID-19 orders, rescinding the statewide mask mandate and ensuring that no business be restricted to under 50% capacity, among other changes.

The text of the order (PDF format) may be read here.

“With the medical advancements of vaccines and antibody therapeutic drugs, Texas now has the tools to protect Texans from the virus,” Abbott said in a press release. “We must now do more to restore livelihoods and normalcy for Texans by opening Texas 100 percent. Make no mistake, COVID-19 has not disappeared, but it is clear from the recoveries, vaccinations, reduced hospitalizations, and safe practices that Texans are using that state mandates are no longer needed. Today’s announcement does not abandon safe practices that Texans have mastered over the past year. Instead, it is a reminder that each person has a role to play in their own personal safety and the safety of others. With this executive order, we are ensuring that all businesses and families in Texas have the freedom to determine their own destiny.”

The changes go into effect Wednesday, March 10.

From the hip: We take a look at each other parts of the order below, our analysis in italics.

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, and in
accordance with guidance from medical advisors, do hereby order the following on a
statewide basis effective at 12:01 a.m. on March 10, 2021:

1. In all counties not in an area with high hospitalizations as defined below:
a. there are no COVID-19-related operating limits for any business or other
establishment; and

The map of areas with high hospitalizations may be found here. Right now that includes three counties — El Paso, Culberson, and Hudspeth, all in far West Texas. See below for criteria.

b. individuals are strongly encouraged to wear face coverings over the nose and
mouth wherever it is not feasible to maintain six feet of social distancing from
another person not in the same household, but no person may be required by
any jurisdiction to wear or to mandate the wearing of a face covering.

This precludes any local, city, county, or other jurisdiction besides federal from imposing personal restrictions.

“Area with high hospitalizations” means any Trauma Service Area that has had
seven consecutive days in which the number of COVID-19 hospitalized patients
as a percentage of total hospital capacity exceeds 15 percent, until such time as
the Trauma Service Area has seven consecutive days in which the number of
COVID-19 hospitalized patients as a percentage of total hospital capacity is 15
percent or less. A current list of areas with high hospitalization~ will be
maintained at www.dshs.texas.gov/ga3031.

2. In any county located in an area with high hospitalizations as defined above:
a. there are no state-imposed COVID-19-related operating limits for any
business or other establishment;
b. there is no state-imposed requirement to wear a face covering; and
c. the county judge may use COVID-19-related mitigation strategies; provided,
however. that:

Even in El Paso County, state mandates closing certain types of businesses are lifted as of March 10. However, it appears counties, cities, and other local entities may weigh in with their own restrictions, but with limits …

1. business and other establishments may not be required to operate at less
than 50 percent of total occupancy, with no operating limits allowed to be
imposed for religious services (including those conducted in churches,
congregations, and houses of worship), public and private schools and
institutions of higher education, and child-care services;

In other words, no local order can impose a capacity limit greater than 50%. And no more outright closures of certain types of businesses and establishments.

11. no jurisdiction may impose confinement in jail as a penalty for violating
any order issued in response to COVID-19; and
iii. no jurisdiction may impose a penalty of any kind for failure to wear a face
covering or failure to mandate that customers or employees wear face
coverings, except that a legally authorized official may act to enforce
trespassing laws and remove violators at the request of a business
establishment or other property owner.

No trips to jail or fines for those who disobey — in other words, no more Shelley Luther situations filling up court dockets.

3. In providing or obtaining services, every person (including individuals, businesses,
and other legal entities) is strongly encouraged to use good-faith efforts and
available resources to follow the Texas Department of State Health Services
(DSHS) health recommendations, found at www.dshs.texas.gov/coronavirus.

Voluntary guidelines here, like with CDC.

4. Nothing in this executive order precludes businesses or other establishments from
requiring employees or customers to follow additional hygiene measures, including
the wearing of a face covering.

This is the catch. Businesses and other public or private places may opt to restrict capacity more than 50%, require masks, etc. — just as they could before government became involved. Abbott’s order does not give visitors the right to defy a business owner’s restrictions.

5. Nursing homes, state supported living centers, assisted living facilities, and long-term care facilities should follow guidance from the Texas Health and Human Services Commission (HHSC) regarding visitations, and should follow infection
control policies and practices set forth by HHSC, including minimizing the movement of staff between facilities whenever possible.

This gives HHSC power to determine nursing home policy. Stay tuned for that.

6. Public schools may operate as provided by, and under the minimum standard health
protocols found in, guidance issued by the Texas Education Agency. Private
schools and institutions of higher education are encouraged to establish similar
standards.

This gives TEA power to determine public school policy. Teachers, administrators, parents, and students will be waiting as school officials now scramble for further orders.

7. County and municipal jails should follow guidance from the Texas Commission on
Jail Standards regarding visitations.

TCJS has the power over local lockups — just as with public schools and nursing homes.

8. Executive Orders GA-17, GA-25, GA-29, and GA-31 are rescinded in their entirety.

Orders may be found archived here. But this leaves a couple untouched, as Abbott said this afternoon, including GA-10 and GA-13 (see below).

9. 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 services allowed by this executive order or allows gatherings restricted by
this executive order. Pursuant to Section 418.0 I 6(a) of the Texas Government
Code, I hereby suspend Sections 418. l 0 I 5(b) and 418. l 08 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.

10. All existing state executive orders relating to COVID-19 are amended to eliminate
confinement in jail as an available penalty for violating the executive orders. To the
extent any order issued by local officials in response to the COVID-19 disaster
would allow confinement in jail as an available penalty for violating a COVID-19-
related order, that order allowing confinement in jail 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 executive order or local order issued in
response to the COVID- 19 disaster.

This significantly strengthens the no jail time provision included above.

This executive order supersedes Executive Orders GA- 17, GA-25, GA-29, GA-31, and
GA-32, but does not supersede Executive Orders GA-10 or GA- 13. This executive order
shall remain in effect and in full force unless it is modified, amended, rescinded, or
superseded by the governor. … [end]

This move has been hinted at for several days, and is a welcome sigh of relief for business owners. It cuts into the lesser-known holiday of Texas Independence Day — though not a day off for most (unless you’re unable to work because of COVID restrictions, that is), it has Texans debating the merits of COVID-19 restrictions, the future of the spread of the disease, and, everyone’s favorite subject lately, politics. While not the carefree atmosphere we had anticipated for March 2, reaction to Abbott’s announcement is a reminder that freedom isn’t always universally embraced when initially proposed. The days ahead, and the litigation involved, will shift the spotlight from electric utility reform back to COVID.

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