Texas governor’s emergency powers during pandemics would be curbed under bill advanced in House

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The Texas House has approved 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 in a preliminary vote Monday. They gave formal approval Tuesday, sending the bill 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 Monday. “As a baseline, you will not government your way out of it.”

HB 3 as advanced 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. On Tuesday, the legislation was tweaked to lower that 120-day threshold to 90 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.

The legislation if passed would represent a new check on the governor’s powers during a pandemic. Throughout the coronavirus pandemic, members from both parties have criticized the governor’s unilateral authority to issue mask orders, waive certain regulations and shut down businesses.

Earlier in the debate, an amendment by state Rep. Cody Vasut, R-Angleton, was adopted 71-70 that would have banned the governor or local governments from issuing mask mandates. But that vote was later challenged — and the amendment ended up failing by one vote, 71-72. Eight House Republicans joined Democrats in voting against it.

Other amendments were adopted Monday, including one from state Rep. Mike Schofield, R-Katy, that would prohibit local officials from issuing an order during a pandemic disaster that requires businesses or industries to close. Another proposal by state Rep. Matt Shaheen, R-Plano, to create an emergency management text system for warnings during a pandemic, was also added to the legislation.

Before the House gave a final stamp of approval to HB 3 Tuesday, state Rep. Chris Turner, D-Grand Prairie, spoke against the legislation, which he said would punish local officials and limit their ability to manage a pandemic disaster in their communities.

"There's one in my view fatal flaw that this bill has that just can't be ignored — that's the continuation of an attack on local control and our local leaders," Turner, who chairs the House Democratic Caucus, said. "Think about when it came to this pandemic. It was our local officials who took the lead."

It's unclear whether the Senate, which did not file companion legislation, will act on the measure with less than a month left of the regular 2021 session. The Senate in April voted out legislation that would require the governor to call a special session in order to declare a state emergency that lasts more than 30 days. Part of that proposal included a potential constitutional amendment that, if passed by the Legislature, would then need to be approved by Texas voters for it to take effect.

The measures by state Sen. Brian Birdwell, R-Granbury, have been referred to a House committee but have not yet been considered in a hearing.