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Legal Update

Apr 28, 2020

Texas Governor Abbott Issues Statewide Plan To Reopen Texas

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Yesterday, Governor Abbott announced the first phase of his plan to reopen Texas. The Governor’s announcement was accompanied by The Governor’s Report to Open Texas, a 60+ page guide laying out the plan for reopening (with capacity restrictions) certain businesses across the state starting on May 1. The Report to Open also includes information about ongoing testing efforts in Texas, plans to initiate phased contact-tracing, and guidance for employers (including industry-specific checklists) on recommended health/safety protocols during the reopening.

In a press conference, Governor Abbott said a second phased opening of other businesses could occur as soon as May 18, provided Texas does not see a surge in COVID-19 cases. Phase I begins Friday, May 1 and continues until at least May 15. Importantly, the Governor also announced a statewide test and trace program developed by the Texas Department of State Health Services (DSHS).

In conjunction with his announcement, the Governor also issued three Executive Orders to effectuate the plan:

Under Executive Order GA-18, restaurants retail stores, movie theaters, malls, museums and libraries are permitted to reopen (to the extent they were not already “essential businesses”) but must limit their inside or service capacity to 25% (50% if located in a county with minimal cases as outlined below). Food courts or other interactive areas must remain closed. Golf courses were also reopened. Nursing Homes and other assisted-living or long-term care facilities remain closed to the public, as do schools. Gyms, salons, interactive amusement venues and bars are also not among the businesses designated for reopening during Phase I. Importantly, GA-18 clarifies that these service capacity restrictions do not apply to essential businesses/services.

For “reopened” businesses located in counties with five or fewer cases of confirmed cases of COVID-19, GA-18 permits increased occupancy/service capacity up to 50%, at the discretion of county authorities and so long as the county judge provides certain certifications and affirmations, including a list of testing opportunities in the area, public notice to residents about COVID-19, documented procedures for COVID-19 patients and contact with the DSHS for contact tracing.

GA-18 also recommends that essential and reopened businesses, their employees and customers, follow standard health/safety protocols recommended by DSHS. The Governor’s Report provides guidance for those businesses scheduled for reopening and recommends “Minimum Standard Health Protocols” for all individuals, employers, retailers, retail customers, restaurants, restaurant customers, movie theaters, movie theater customers, museums and libraries, museum and library visitors, outdoor sports participants (no more than four participants), churches and places of worship, single-person offices, and low COVID-19 counties. These protocols (including helpful industry-specific checklists) are outlined beginning on page 20 of the Report and, in general, include social distancing, the wearing of cloth face coverings, the availability of hand sanitizer and disinfecting wipes in addition to regular and frequent cleaning and disinfecting of regularly touched surfaces as well as dedication of certain operating hours to at-risk customers. For restaurants, tables must be at least 6 feet apart, a hand sanitizing station must be available upon entry, and no tables of more than 6 are permitted. In addition, menus must be disposable, condiments are only provided upon request and must be in single use, disposable portions.

As we reported previously here and here, Governor Abbott’s prior orders stopped short of requiring any business to close or issuing a stay home or stay safe order, instead permitting counties and cities to enact and enforce more restrictive orders. In response, several cities and counties issued orders shuttering bars, businesses and restaurants, mandating stay home stay safe orders and social distancing protocols rather than just suggesting that citizens minimize social gatherings and in-person contact. GA-18 provides, however, that any conflicting order issued by local officials relating to the COVID-19 pandemic is now superseded, but only to the extent such order restricts essential services or reopened services, allows gatherings prohibited under GA-18 or expands the list of essential services or list of reopened services. As the pandemic grew, Texas counties continued to issue more restrictive orders for individuals and businesses, including the requirement that any individual over the age of 10 wear a face mask when in public. Under GA-18, these restrictions no longer apply. Despite the legal nuances, many businesses have already announced they will continue requiring all patrons and employees to wear a face mask or covering before entering.

With respect to health care, Executive Order GA-19 relaxes certain restrictions on health care professionals and amends requirements relating to hospital capacity as we previously reported here and here, GA-19 provides:

  • All licensed health care professionals shall be limited in their practice by, and must comply with, any emergency rules promulgated by their respective licensing agencies dictating minimum standards for safe practice during the COVID-19 disaster.
  • Every hospital licensed under Chapter 241 of the Texas Health & Safety Code shall reserve at least 15% of its hospital capacity for treatment of COVID-19 patients, accounting for the range of clinical severity of COVID- 19 patients, as determined by the Texas Health and Human Services Commission

Finally, Executive Order GA-20 eliminates the mandatory 14 day travel ban on individuals traveling into Texas from Louisiana, but continues the mandated 14-day self-quarantine period for individuals traveling into Texas from California; Connecticut; New York; New Jersey; Washington; Atlanta, Georgia; Chicago, Illinois; Detroit, Michigan, and Miami, Florida as previously reported here.