Off the Kuff Rotating Header Image

Why isn’t COVID an emergency item?

Ask Greg Abbott.

Gov. Greg Abbott on Monday unveiled a legislative agenda centered on the state’s recovery from the coronavirus pandemic and a series of more politically charged issues such as police funding and “election integrity.”

In his biennial State of the State speech, Abbott declared Texas is “brimming with promise” as it emerges from the pandemic and seeks to return to economic dominance. He pledged “hard-working Texans are at the forefront of our agenda this legislative session as we build a healthier, safer, freer and more prosperous state.”

Abbott designated five emergency items, or items that the Legislature can vote on within the first 60 day of the session, which began Jan. 12. Those items were expanding broadband internet access, punishing local governments that “defund the police” as he defines it, changing the bail system, ensuring what he described as “election integrity” and providing civil liability protections for businesses that were open during the pandemic.

Abbott also asked lawmakers to pass laws that would strengthen civics education in Texas classrooms, further restrict abortion and make Texas a “Second Amendment sanctuary state.” On issues stemming from the pandemic, Abbott called for legislation to permanently expand telemedicine and to prevent “any government entity from shutting down religious activities in Texas.” And Abbott briefly touched on the debate among some in his own party over how aggressively he has wielded his executive powers to respond to the coronavirus.

“I will continue working with the Legislature to find ways to navigate a pandemic while also allowing businesses to remain open,” Abbott said.

Abbott gave the address from Visionary Fiber Technologies in Lockhart, eschewing the traditional setting of a joint legislative session inside the House chamber as lawmakers continue to worry about gathering en masse during the pandemic.

Democrats pushed back on Abbott’s speech by accusing him of giving an overly rosy view of the state’s coronavirus response. Calling Abbott the “worst Governor in modern Texas history,” the state Democratic Party chairman, Gilberto Hinojosa, said in a statement that Abbott “buries his head in the sand and pretends like nothing is happening.”

[…]

When it came to legislative priorities, Abbott was noticeably light on details in some cases. On election security, Abbott did not say what he was looking for beyond instilling “trust and confidence in the outcome of our elections.” Texas already has some of the most restrictive voting laws in the country, though the state’s Republicans are newly focused on the issue after fighting efforts by Democrats to make it easier to vote ahead of the November election due to the pandemic.

I’ll get to the voting stuff in a minute. It is true, as Ross Ramsey noted, that the declaration of something as an “emergency item” just means that a bill relating to it can be passed earlier in the legislative session than non-emergency items. One can certainly argue that the key challenges now are vaccinations, containing the spread of the virus, keeping hospitals running, and other things like that, which don’t require a new law being passed. One can also argue that at the State of the State Address, it would be nice for the Governor to actually focus a bit on this year-long pandemic and the effect it has had, beyond some rah-rah cheerleading, and what he as Governor is doing and will do and will tell the Legislature to do about it. I’m pretty sure the average voter doesn’t understand the nuances of “emergency items”, but rather would think of them in terms of what is of the greatest importance. Don’t you think COVID response and COVID vaccinations belong in that category? I’m just saying.

As for “election security”, putting aside all the bragging that Republicans in Texas have done about how well they did in this past election that they now claim was unacceptably insecure, it’s not clear what they would do about it. What I know is that I would campaign on the opposite message, that what we really need to do is make it as easy and convenient for everyone to vote as possible, which starts with making it easier to register and to cast a ballot by mail. I’m happy to have that argument all the way through next November and beyond. The Current and the Texas Signal have more.

Related Posts:

5 Comments

  1. Doris Jim Murdock says:

    Thank you. Gov [sic] Abbott continues to put the cart, i.e. his Panglossian outlook for Texas, before the horse, i.e. vaccinations for corona virus. Sick people can’t work and rightly cautious, healthy (for now) people don’t want to go out and spend money. Are Abbott’s lips sore from all the dog whistles?

  2. I thought Strangeabbott thought COVID WAS an emergency. Didn’t he say so when he set the date for the SD30 special, that this seat couldn’t go unfilled far into the Lege session cuz COVID?

  3. Lobo says:

    BRIMMINGLY

    King Abbott’s speech: Platter of red meat for the base, served up with platitudes.

    See for yourself here: https://gov.texas.gov/news/post/governor-abbott-delivers-2021-state-of-the-state-address (pre-delivery version)

    “Just as Texans have united and put their differences aside to support one another through the pandemic, we in the capitol must also come together to work on their behalf. We must seize this opportunity to make our state healthier, safer, freer, and more prosperous for all who call Texas home.”

    Taxpayer money for a reasonably talented speech writer would be well spent.

    As for measures to fight the pandemic, tort immunity for business!

    And make sure to crush the locals.

  4. Mainstream says:

    From the right, Gov. Abbott is being attacked for not making ending taxpayer funded lobbying for municipalities and property tax reform emergency items this session.

  5. Kibitzer Curiae says:

    Abbott Deems it Urgent to Further Criminalize Voting, Set Traps

    The Trib’s Patrick Svitek has more on “election integrity” priority item in his Feb. 2 follow-up article titled “Gov. Greg Abbott open to reforming his emergency powers after months of criticism from both parties.”

    — quote

    As part of his State of the State speech, Abbott designated five emergency items, or items that lawmakers can vote on within the first 60 days of session. One of them is “election integrity,” though Abbott did not provide any details in his address.

    He elaborated in the interview, saying a “starting point” would be wide-ranging legislation from last session that would have made over two dozen changes to election practices, including making it a felony for Texans to vote when they’re ineligible or provide false information on a voter application, even if they do those things unknowingly.

    — unquote

    THE MATTER OF EVIL INTENT & LACK THEREOF

    This is ominous. It basically means getting rid of the “mens rea” element in criminal law through legislation amendment, and to preemptively neutralize precedent created by a possible reversal of the conviction of Crystal Mason by the Court of Criminal Appeals.

    That case currently pending. See docket at:
    https://search.txcourts.gov/Case.aspx?cn=PD-0881-20&coa=coscca

    CRYSTAL LA VON MASON-HOBBS, No. PD-0881-20 (Tex. Crim. App.)

    The CATO INSTITUTE and a group of CRIMINAL LAW SCHOLARS have submitted separate amicus curiae briefs, both urging the CCA to overturn a conviction for casting a provisional ballot by a person subsequently determined to be ineligible where that person did not know that the Election Code made her ineligible.

    THE LOWER COURTS DISPENSED WITH THE MENS REA (culpable mental state/evil intent) REQUIREMENT, holding as follows:

    “[C]ontrary to Mason’s assertion, the fact that she did not know she was legally ineligible to vote was irrelevant to her prosecution under Section 64.012(a)(1); instead, the State needed only to prove that she voted while knowing of the existence of the condition that made her ineligible, in this case—as alleged by the State—that she was on federal supervised release after being released from imprisonment after a final felony conviction.”

    Mason v. State, No. 02-18-00138-CR, 598 S.W.3d 755 (Tex.App.-Fort Worth, Mar. 19, 2020)

    “[T]he State need only show beyond a reasonable doubt that the defendant voted while knowing of the condition that made the defendant ineligible; the State does not have to prove that the defendant subjectively knew that voting with that condition made the defendant ineligible to vote under the law or that to vote while having that ineligibility is a crime.”

    Chrystal Mason v. State of Texas, 598 S.W.3d 755, 768-69 (Tex.App.-Fort Worth, 2020)(footnote omitted)

    WALKING INTO THE TRAP, THEN OFF TO PRISON

    So, Abbott’s basic idea here is to set traps for the unwary, and make the casting of a vote hazardous when eligibility may be uncertain. And it’s apparently a priority concern because the first volleys in the re-election campaign have already been fired. See Abbott-Beto exchange on gun rights.

    The criminalization initiative is eerily reminiscent of Election Director Keith Ingram’s accusation to County Clerk Chris Hollins that he was walking Harris County voters into felonies by sending out unsolicited absentee ballot applications [with instructions as to eligibility as modified by the SCOTX in In re State, No. 20-0358, 602 S.W.3d 549 (Tex. May 27, 2020), instructions that the Secretary of State did NOT see fit to provide to voters interested in absentee voting on the SOS very own website].

    WHAT THE CRIMINAL LAW SCHOLARS SAY

    The petition poses a question of immense importance: Does a person
    commit a crime by voting when she does not know she is ineligible to vote,
    but knows facts that make her ineligible?

    The correct answer should be no.

    Texas’s Legislature specified in Election Code § 64.012(a)(1) that “[a]
    person commits an offense if the person . . . votes . . . in an election in
    which the person knows the person is not eligible to vote.” The statute
    thus criminalizes conduct only if a person (1) votes in an election and
    (2) knows that she is not eligible to vote in that election.

    In reaching the opposite conclusion, the court of appeals
    misinterpreted the fundamental principle of mens rea and this Court’s
    precedents interpreting that requirement. A bedrock principle of
    criminal law is that only an individual who acts with criminal intent is
    subject to criminal punishment. That principle is reflected in the
    common law, in numerous Supreme Court cases, and in decisions of this
    Court — which has stood as a bulwark against attempts to read Texas
    statutes to criminalize apparently innocent conduct. See, e.g., Delay v.
    State, 465 S.W.3d 232 (Tex. Crim. App. 2014).

    The decision below, however, turned this principle on its head.

    Rather than apply the statute as written, the court of appeals held that
    the State need only prove that a defendant was aware of facts that
    rendered her ineligible to vote, regardless of whether she knew she was
    ineligible. Mason v. State, 598 S.W.3d 755, 770 (Tex. App.—Fort Worth
    2020, pet. filed). That was error. For Crystal Mason, knowing that she
    “had not yet completed her supervised release,” id., was not at all the
    same as “know[ing] [she] [wa]s not eligible to vote,” § 64.012(a)(1). The
    decision in effect read the written mens rea requirement out of the
    statute, depriving Texas’s Legislature of its choice to criminalize voting
    only when a person “knows [she] is not eligible to vote.”

    When is it illegal to vote? The requirement that someone act with
    a culpable state of mind is essential to criminal law in the United States.

    And it is all the more important in a case involving voting: “The right to
    vote is fundamental, as it preserves all other rights.” Andrade v. NAACP
    of Austin, 345 S.W.3d 1, 12 (Tex. 2011).

    The petition for review should be granted and the decision below
    should be reversed.