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Texas Epidemic Public Health Institute

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.