Will lawmakers rein in governor’s pandemic executive powers? COVID-19 sparks conversation
A governor’s powers during a pandemic were a focus of a Thursday legislative hearing on a sweeping COVID-19 response bill.
For the past year, Gov. Greg Abbott’s executive power during emergencies has been the subject of scrutiny amid the COVID-19 pandemic. Some say he has gone too far in wielding his authority to address the virus. Others think he hasn’t gone far enough and want local officials to have a say in what’s best for their communities.
A proposal by Rep. Dustin Burrows, R- Lubbock, related to state and local government responses to a pandemic was considered by the State Affairs committee Thursday. It was left pending in committee.
“You cannot go through the last year and not have a broad discussion about what should be governmental powers during the time of a pandemic,” Burrows said ahead of the hearing.
He described the bill as a road map were Texas to have another disease outbreak.
Provisions of the legislation include limits on property tax rates during a pandemic and civil liability protections for businesses operating during a pandemic, one of Abbott’s emergency items. The legislation would bar businesses that took steps to comply with COVID-19 safety rules from being held liable for injuries from the virus.
The bill also codifies that someone cannot be jailed for not following pandemic orders and includes measures to protect “religious freedom” and keep gun stores and shooting ranges open. Additionally, the bill specifies that local election officials must get approval from the Texas Secretary of State to alter voting procedures due to a pandemic.
At the center of the bill is a governor’s executive authority to respond to health crises like COVID-19.
A committee substitute of the bill amends parts of the original legislation related to Abbott’s executive power to create a Pandemic Disaster Legislative Oversight Committee. The committee, composed of 10 members including the lieutenant governor, the house speaker and House and Senate committee chairs, could after 30 days review the governor’s pandemic disaster declaration and orders and terminate them if deemed appropriate.
The committee would operate when the legislature is not in session. When lawmakers convene in Austin every other year, the lawmakers can “terminate a state of pandemic disaster at any time,” the bill reads.
State lawmakers, Texans weigh in
Dozens of people signed up to testify on the legislation.
Among the first to speak was Paul Hodson of Burleson, the co-founder of advocacy group Grassroots Gold, who testified against the bill as it’s currently drafted. He said the legislation “falls short in recognizing the separation of powers.”
“My recommendation would be some provision that the legislature themselves can initiate to compel a special session be called to renew a pandemic disaster declaration or any disaster declaration,” he said.
The Texas Retailers Association, the Texas Association of Business , the Texas Hospital Association and the National Federation of Independent Business were among the trade organizations to express support for the legislation during Thursday’s hearing.
“We believe that House Bill 3 protects the flexibilities necessary for the rapid and thorough response we’ve seen in this pandemic,” said Carrie Kroll, vice president of advocacy, quality and public health for the Texas Hospital Association.
Glenn Hamer, the president and CEO of the Texas Association of Business, commended the portion of the bill offering civil liability protections.
“TAB is dedicated to supporting this legislation and any legislation that prevents the possibility for abusive litigation targeted at businesses that are doing everything possible to open safely and to protect their customers as well as their employees,” he said.
State Rep. Donna Howard, D-Austin, said she’d received 166 emails. All of them were against it as originally filed.
Howard said she think it’s good to be thinking about an organized, statewide response plan and said one person making decisions between legislative sessions without representation of the uniqueness of different communities is challenging.
She suggested language be included to ensure state lawmakers have a role in allocating federal dollars during a pandemic.
As the hearing on the bill began, State Rep. Tony Tinderholt, R-Fort Worth, announced eight bills related to a governor and local official’s powers during a disaster. Included in the packet of bills is a measure that prohibits a governor from ordering businesses closed during a disaster.
“I have heard from countless constituents over the past year regarding the emergency powers granted to certain elected officials,” Tinderholt said in a statement. “While the Texas Disaster Act serves a vital purpose in emergency management, reforms are necessary to ensure the individual rights of all Texans are preserved.”
As the hearing progressed, Rep. Richard Peña Raymond, D-Laredo, seemed to favor the legislature convening in a special session to address pandemics, something several giving testimony said they’d support. He pledged to offer an amendment to the bill proposing the change.
House Bill 3 gets Republican backlash
Some Republicans have criticized the bill for not doing enough to rein in the governor’s executive powers. Former Empower Texans CEO Michael Quinn Sullivan who is the publisher of Texas Scorecard called the new version “worse.”
“Plays hide-the-ball, and does nothing to address the concerns of Texans,” he said in a Wednesday tweet. “It makes the problem of executive overreach worse. It is a sick joke.”
Texas GOP Chair Allen West also opposes the legislation. He did not testify in person, but in written testimony shared by the Republican Party online, West said the bill would “codify unconstitutional actions by an executive into law” in a copy of his testimony shared online.
“No emergency is grounds for the suspension of the rule of law,” the testimony reads. “And no executive — at any level government — is above the rule of law.”
Shelley Luther, a Dallas salon owner who was jailed for opening her business despite Abbott’s COVID-19 order, testified that “Governor Abbott, and any governor or legislator, does not have the authority to tell me what to do as a person.”
“Gov. Abbott is stomping all over us, all over our liberties,” said Luther, who also ran for state Senate. “We have personal responsibilities. Me as a business owner, I’m responsible for who comes in my business and my employees, and if I do something wrong, I am responsible for that. But I got punished because I did the right thing.”
University of Houston political science professor Brandon Rottinghaus said some factions of the Republican Party find any degree of executive authority problematic, but that the bill goes further in checking the governor’s power than what’s typically seen.
Usually lawmakers will opt to restrain money or deny appointments, he said.
“Some of this is political,” Rottinghaus said. “Some of this is institutional, but it’s all a potential problem for the governor, who is going to have to either find a way to work with the legislature to adapt the law to an acceptable conclusion or let them work their process and then potentially veto it down the road.”
For the bill to become law, it must get support of the House, Senate and then Abbott’s signature. Changes are expected as the session and debate on the bill progresses.
In the Senate, Brian Birdwell, R-Granbury, has filed bills that would require the governor to call a special session of the legislature if seeking to continue a declaration past 30 days if the disaster is impacting a certain portion of the state. His proposal also gives the legislature the sole authority to order the closure of specific types of businesses.
West favors Birdwell’s approach to addressing emergency powers and asked House Bill 3 be voted down.
“These pieces of legislation institute the legislative check originally contemplated by the disaster act without unnecessarily encumbering the governor’s response to more routinely recurring disasters that do not affect a substantial number of citizens of the state,” Birdwell said in a statement.
This story was originally published March 11, 2021 at 5:45 AM.
CORRECTION: Michael Quinn Sullivan is the former Empower Texans CEO. He is currently the publisher of Texas Scorecard.
