Off the Kuff Rotating Header Image

House passes its bill to limit Governor’s emergency powers

Not sure if this is going to make it through the Senate.

The Texas House on Monday gave preliminary approval to a sweeping bill that would reform the governor’s emergency powers during a pandemic and involve the Legislature during such instances.

House members voted 92-45 for House Bill 3, which will need another vote in the lower chamber before it heads over to the Senate for consideration.

“We must now take what we have learned in dealing with the pandemic and set a different framework for future pandemics,” state Rep. Dustin Burrows, a Lubbock Republican and author of the proposal, told House members as he laid out the legislation. “As a baseline, you will not government your way out of it.”

HB 3 as advanced Monday would give lawmakers more oversight of the governor’s emergency powers during a pandemic and specifically carves out future pandemics from how the state responds to other disasters, such as hurricanes. One amendment added Monday, for example, would require the Legislature to convene for a special session if a disaster declaration lasts longer than 120 days.

The wide-ranging legislation would affirm the governor’s ability to suspend state laws during a pandemic and allow for overriding local orders issued by county judges or mayors if they’re inconsistent with state orders.

Members drastically changed the legislation Monday with a number of amendments during the floor debate, including one that would create the Texas Epidemic Public Health Institute at the University of Texas Health Science Center at Houston. That entity would make recommendations to a 12-member legislative oversight committee that also would be created if HB 3 became law. The committee, which would consist of the lieutenant governor and speaker — who would serve as joint chairs — and a number of committee chairs from both chambers, could in certain cases terminate pandemic disaster declarations, orders or other rules issued by the governor or local governments. It would only be able to act though when the Legislature is not convened for a regular or special session.

Ahead of Monday’s debate, the legislation was tweaked by Burrows to allow the Legislature to intervene on certain executive orders or proclamations issued by the governor. The governor would need permission from the Legislature to extend beyond 30 days an order or proclamation related to requiring face masks, limiting certain medical procedures or closing or capping business operating capacity. If the Legislature wasn’t already in session, the governor would be required to convene a special legislative session for lawmakers to consider modifying or terminating that order. If the Legislature was already in session, the governor would still need to ask state lawmakers for input to modify or terminate an order.

See here, here, and here for some background. You know how I feel about this – I generally agree with giving the Legislature a broader say in these matters, but I recognize that there can be logistical challenges with that, not to mention concern about speed of response. I also have serious concerns with the philosophy embedded in this bill – to say “you’re not going to government your way out” of a pandemic is, to put it mildly, wildly misinformed. I also have great concerns about the neutering of local officials, which the Chron story goes into.

The bill prohibits local governments from closing businesses or limiting their maximum occupancy, plus any local government deemed by the governor to have required a business to close would be prohibited from levying certain tax increases.

The bill also includes protections for most businesses from civil suits related to the pandemic.

Some of the more recent additions to the bill have helped it win the favor of conservative legislators who were skeptical, such as Rep. Tony Tinderholt, R-Arlington, who commended the bill’s author, Rep. Dustin Burrows, R-Lubbock, for addressing his concerns.

Texas House Democratic Party Chair Chris Turner, D-Grand Prairie, said the deal breaker for many members of his party came down to limits on local control.

“There were some positive things in the bill, but a lot of us were not comfortable with restrictions on local officials,” Turner said. “Local officials led our state through the pandemic and the Legislature should not limit their ability to do so in the future.”

I will admit to mixed feelings on this as well. We saw last year that the response to the pandemic varied greatly between urban counties and their neighbors. Harris County was serious about masking and social distancing and limiting gatherings, which meant putting more restrictions on businesses, while Montgomery County was the exact opposite. Which is all well and good until you remember that viruses don’t respect borders, and Montgomery’s laxness had a negative effect on Harris. That’s the argument for limiting what local officials can do, which sounds great until those limits are on actions you approve of. This bill ratchets that debate in the Republican direction, which at least clarifies the ambivalence I feel. The Senate bill is more limited in its approach. I have no idea which bill will win out. There’s only so much time left for a compromise. Reform Austin has more.

Related Posts:

11 Comments

  1. Bill Daniels says:

    Yes, limit the governor’s emergency powers to kill businesses and jobs! If a previously level headed, fairly competent and moderate guy like Greg Abbott can be seduced by that power and use it for evil, any governor can fall under the same spell, so we need to “bind them down from mischief with the chains of” state law.

    The whole point of our US Constitution is to protect the citizenry from the government, not the other way around. Note that it’s there to protect the citizenry…..not illegals who have no legal reason to be here.

  2. Política comparada says:

    Re: “The whole point of our US Constitution is to protect the citizenry from the government.”

    – Wrong.

    CIVICS 101 ERROR CORRECTION

    Purpose of US Constitution was to provide for greater centralization of power (at the federal level), ie, a stronger national government relative to the loose set-up under the Articles of Confederation, the status quo at the time.

    Also see statement of purpose in the preamble: More perfect UNION

    “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

    On a lesser point, the protections contained in the Bill of Rights (amendment 1 through 10) limited only the powers of the federal government and these protections of individual/civil liberties were later extended and made applicable against state governments (and their use/abuse of power) through “incorporation”, a constitutional doctrine developed by the US Supreme Court based on the due process clause in the Fourteenth Amendment, which came much later. See –> Civil War Amendments (13th, 14th, and 15th, also collectively known as –> Reconstruction Amendments).

    For drilldown by amendment, court cases, and further links/references, look here:

    https://www.law.cornell.edu/wex/incorporation_doctrine

    As for Texas, it wasn’t part of the Confederation or the US at its inception. Therefore, the supremacy clause and federal preemption did not come into play until accession.

  3. Joel says:

    Re: CIVICS 101 ERROR CORRECTION

    “Purpose of US Constitution was to provide for greater centralization of power (at the federal level), ie, a stronger national government relative to the loose set-up under the Articles of Confederation, the status quo at the time.

    Also see statement of purpose in the preamble: More perfect UNION”

    WRONG. That there Preamble you mention lists 6 distinct purposes of the Constitution. (Everyone old enough to remember schoolhouse rock can sing it.)
    “More perfect Union” is just one of them.

    But you are right that none of the 6 purposes mentions citizens or excludes “illegals.”

  4. Jason Hochman says:

    The Fourteenth Amendment creates the distinction of US citizens.
    ” All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

  5. Bill Daniels says:

    Joel,

    It doesn’t elevate illegals over actual citizens, something the Biden junta is going out of its way to do. Citizens, legal residents, and legal visitors, need to provide proof of who they are, proof that they are permitted to enter the US, and proof that they are disease free.

    Compare and contrast with Biden’s treatment of illegals. They enter literally at will, without permission, without identification, and without proof that they are disease free, and then our own ICE puts them on domestic flights all over the country at taxpayer expense. I doubt the framers intended this kind of thing to go on.

  6. Bill Daniels says:

    Wolf,

    Ask yourself why a Bill of Rights was attached to the Constitution in the first place. It was done by people who were VERY cognizant of what an abusive government looks like, and they didn’t want to repeat that cycle of abuse of the citizenry going forward. Of particular interest, note that our founding documents speak to natural, God given rights, that those documents codify. In other words, we already have the RIGHT to be free of government abuse, like being forced to quarter troops in our homes.

    God gave us those rights, the Constitution merely acknowledges what we already have.

    “In questions of power, let no more be heard of confidence in man, but bind him down from mischief by the chains of the constitution.”

    ― Thomas Jefferson

  7. C.L. says:

    I don’t believe the word ‘God’ (not to mention the phrase ‘God given rights’) is ever used in the US Constitution, save for Article VII’s ‘In the Year of our Lord’ reference.

  8. Bill Daniels says:

    https://citizensentinelsnetwork.com/editorial/god-and-the-constitution-of-the-united-states/

    This is a nice write up, and of course, the Declaration of Independence specifically references God.

  9. Joel says:

    Jason:

    “The Fourteenth Amendment creates the distinction of US citizens.
    ‘All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.'”

    You’re right, the 14th amendment defines citizens. It does not say the entire Constitution is only about them, however. Much of the rest of the Constitution is about everybody.

    Words matter. Where it talks about citizens, it is about citizens. Where it talks about people, it is about people.

    For example, Amendment IV: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated …”

    Or Amendment V: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury …”

    Bill:

    Your comment to me is purely specious, as always. Not even worth responding in detail.

    Both of you and your comments are chronically and cosmically stupid. I wake every day glad that I have not put myself into the position of providing a home on the internet for your drivel.

  10. Ross says:

    Bill, if Abbott had not imposed restrictions, and everyone went about their business unmasked and without a care in the world, how many dead Texans would have been acceptable to you? A million? 2 million? Would you have been ok with a family member dying of trauma because the hospitals were too full to treat them? Would you have accepted your own death gracefully, or screamed like the entitled jerk you actually are?

  11. Kibitzer says:

    SEPARATION OF POWERS: THEORY VS. REAL-WORLD POWER CONCENTRATION

    The proposed legislation limiting the emergency powers of the governor is in line with the separation-of-powers and checks-and-balance design features. Note that separation of powers is expressly written into the Texas constitution as a bulwark against over-concentration of powers in the executive branch, which in turn is divided into distinct elective offices (sometimes collectively referred to as a “plural executive”).

    The problem here is that all three branches of the tri-partite government are controlled by the same political faction, which undermines the effectiveness of the formal separation, and the real-world impact of any tinkering with the Texas Disaster Act upon which the Governor relied as authority to rule by decree.

    The Texas Supreme Court could in theory restrain the Governor’s use of emergency powers while the Lege is not in session (and therefore cannot play any meaningful role), but look how they handled Executive Order GA-13, dubbed Stay-in-Jail order, through which Abbott usurped judicial powers, namely the power of local judges over bail decisions. In re Abbott, 601 S.W.3d 802 (Tex. 2020) (orig. proceeding) (per curiam).

    And in the Shelley Luther case, they let her off on a flimsy order-drafting technicality without addressing any issue about the legality of pandemic containment orders. In re Shelley Luther, No. 20-0363 (Apr. 9, 2021) (“We hold that the temporary restraining order’s lack of specificity regarding the conduct to be restrained renders it and the Judgment of Contempt and Order of Confinement void.”).

    At the minimum, there is a chance of somewhat greater transparency and more open debate over policy options when the Legislature gets to second-guess the Governor’s use of emergency powers. After all, there *is* minority-party representation in the Lege, which we don’t currently have on the SCOTX or in the executive branch, and the same would hopefully apply to any interim subset of the Lege that gets to review the propriety of gubernatorial emergency measures (or disaster declaration renewal) between regular sessions.

    But current bill does much more than just create a mechanism to constrain possible abuses of gubernatorial emergency powers. So, those other provisions necessitate separate analysis. Note the diminution of the role of local governments is *contrary* to the rationale for separations of powers.

    And the grant of COVID tort immunity to businesses is an entirely different policy issue.