As the world seems to grind to a halt in an effort to slow the spread of the coronavirus, questions abound. Nothing similar has occurred in recent memory, and everyone seems to be figuring out the rules as they go.
1.Can the government really order businesses to close?!
- The powers granted the Texas government are broad and sweeping, in the interest of public safety.
- Under the Texas Disaster Act, the Governor may “suspend the provisions of any regulatory statute prescribing the procedures for conduct of state business or the orders or rules of a state agency if strict compliance with the provisions, orders, or rules would in any way prevent, hinder, or delay necessary action in coping with a disaster.”
- Governor Abbott declared a statewide emergency on March 13, 2020, triggering the above provisions of the Texas Disaster Act.
- On March 19, 2020 Governor Abbot issued executive orders which required the following:
- Order No. 1 – In accordance with the Guidelines from the President and the CDC, every person in Texas shall avoid social gatherings in groups of more than 10 people.
- Order No. 2 – In accordance with the Guidelines from the President and the CDC, people shall avoid eating or drinking at bars, restaurants, and food courts, or visiting gyms or massage parlors; provided, however, that the use of drive-thru, pickup, or delivery options is allowed and highly encouraged throughout the limited duration of this executive order.
- Order No. 3 – In accordance with the Guidelines from the President and the CDC, people shall not visit nursing homes or retirement or long-term care facilities unless to provide critical assistance.
- Order No. 4 –In accordance with the Guidelines from the President and the CDC, schools shall temporarily close.
- In addition, local city governments have authority to issue temporary ordinances requiring businesses to limit their business or temporarily close.
- Type-A General Law municipalities may stop, detain, and examine someone who is coming from a place infected or believed to be infected with a communicable disease and may adopt rules necessary to suppress disease and enforce those rules within 10 miles of the municipality Tex. Health & Safety Code § 122.005(a)(1) and Tex. Health & Safety Code § 122.005(b)(2).
- A Home Rule municipality may also adopt rules to protect its residents against communicable disease and provide for the establishment of quarantine stations and emergency hospitals Tex. Health & Safety Code § 122.006
- For information regarding Home Rule vs General Rule, see this paper promulgated by the Texas Municipal League https://www.tml.org/DocumentCenter/View/244/Types-of-Texas-Cities-PDF
- Bell County declared a local state of emergency on March 18, 2020. See a copy of the order here: https://www.bellcountytx.com/covid19D.pdf
2.Who is in charge of implementing control measures in my County?
- On the local level, the local health authority (LHA) has supervisory authority and control over the administration of communicable disease control measures within their jurisdiction unless specifically preempted by the state.
- Bell County’s Local Health Authority (LHA) is Janice Smith, MD, and is over the Bell County Public Health District. Tex. Health & Safety Code § 81.082.
- The duties of an LHA include: establishing, maintaining, and enforcing quarantine in the LHA’s jurisdiction; aiding Texas Department of State Health Services (DSHS) with local quarantine, inspection, disease prevention and suppression, birth and death statistics, and general sanitation within the LHA’s jurisdiction; reporting the presence of contagious, infectious, and dangerous epidemic diseases in the jurisdiction to DSHS; reporting to DSHS on any subject on which it is proper for a report to DSHS to be made; and aiding DSHS in enforcing proper rules, requirements, ordinances, sanitation laws, quarantine rules, and vital statistics collection. Tex. Health & Safety Code § 121.024.
- Bell County is currently in Phase 2 of COVID-19 preventive measures, according to press releases dated March 13 and March 16, 2020.
3. Can the government order me to quarantine?!
- DSHS has the authority, with reasonable cause to believe an individual has been exposed to or infected by a communicable disease, to order the person to submit to control measures. Tex. Health & Safety Code § 81.083(b)
- The order must be written and delivered in person or via registered or certified mail and remains in effect until the individual is no longer infected or until expiration of the longest usual incubation period for the suspected disease. Tex. Health & Safety Code § 81.083(c)-(d)
- The DSHS Commissioner may also establish an area quarantine if there is a communicable disease outbreak in the state. Tex. Health & Safety Code § 81.085
- The LHA may impose an area quarantine within the LHA’s jurisdiction only after consulting with DSHS. Tex. Health & Safety Code § 81.082(c-1).
4. What if I ignore a quarantine order?
- Failure to abide by area quarantine orders is a felony of the third degree, which is punishable by two to 10 years of imprisonment and a possible fine of up to $10,000. Tex. Health & Safety Code § 81.085(h); Tex. Penal Code § 12.34
- Knowingly transporting people or property that the person knows or suspects is infected or contaminated with a communicable disease that is a threat to the public health into this state is a Class A misdemeanor. If the person acts with the intent to harm or defraud, it is a felony of the third degree. Tex. Health & Safety Code § 81.089
In short, the state and federal government have broad powers to prevent the spread of communicable diseases. The expanded powers may seem to fly in the face of Constitutional protections, but they have been granted to the government by the legislature and in some cases, the framers of the Constitutions themselves. Each of the enlarged powers should exist only during states of emergency and are arguably in place to ensure public safety. As we all wait for things to return to some semblance of normalcy, we also wait for the restrictions on our businesses and personal freedoms to be loosened or released. We are hopeful that this disease can be slowed or stopped, but in the meantime may we all do our part in that effort, knowing that similar sacrifices are being made by our peers and neighbors.