In the first phase of an effort to restart parts of Texas’ economy, on April 27, Texas Governor Greg Abbott issued an executive order allowing certain businesses – retail establishments, restaurants, movie theaters, shopping malls, museums, libraries, golf courses, and services provided by an individual working alone in an office – to reopen on May 1, 2020, with most subject to certain restrictions regarding occupancy. Governor Abbott’s order, Executive Order GA-18, supersedes his prior executive stay-at-home order (Executive Order GA-16) and any conflicting local order, including, as discussed below, such orders that impose a civil or criminal penalty for failure to wear a face covering.
Executive Order GA-18 continues to allow business providing “essential services” to operate. “Essential services” continues to include everything listed by the U.S. Department of Homeland Security in its Guidance on the Essential Critical Infrastructure, Version 3.0 or any subsequent version, plus religious services conducted in churches, congregations, and houses of worship.
The new development in Executive Order GA-18 is that it allows (but does not require) the following “reopened services” that are not already “essential services” to reopen starting at 12.01 a.m. on Friday, May 1, 2020:
- Retail establishments operating at up to 25 percent of their total listed occupancy
- Restaurants operating at up to 25 percent of their total listed occupancy (does not include restaurants with 51 percent or more of their gross receipts from the sale of alcoholic beverages)
- Movie theaters operating at up to 25 percent of the total listed occupancy of any individual theater for a screening
- Shopping malls operating at up to 25 percent of their total listed occupancy (food-court dining area, play areas, and interactive displays must stay closed)
- Museums and libraries operating at up to 25 percent of their total listed occupancy (interactive functions and child play areas must stay closed)
- Services provided by an individual working alone in an office
- Golf course operations
- Local government operations (as determined by the local government)
Additionally, in counties with five or fewer reported COVID-19 cases, per the state health department’s attestation process, Executive Order GA-18 allows retail establishments, restaurants, movie theaters, shopping malls, museums, and libraries to operate at up to 50 percent of their total listed occupancy.
In providing and obtaining “essential services” and “reopened services,” people and businesses should follow the minimum standard health protocols recommended by the Texas Department of State Health Services (DSHS), and should implement social distancing, work from home if possible, and practice good hygiene, environmental cleanliness, and sanitation.
Bars, gyms, public swimming pools, interactive amusement venues (e.g., bowling alleys and video arcades), massage establishments, tattoo studios, piercing studios, and salons are not allowed to operate under Executive Order GA-18 and are expressly listed as establishments people should avoid visiting. Additionally, individuals remain required to minimize social gatherings and minimize in-person contact with people outside of their household.
Notably, given the number of local government orders related to face coverings, Executive Order GA-18 encourages, but does not mandate, individuals to wear face coverings. Additionally, Executive Order GA-18 expressly prohibits any jurisdiction from imposing a “civil or criminal penalty for failure to wear a face covering” (as a recent Harris County face covering order purported to do) and supersedes any conflicting order issued by any local government to the extent the “local order restricts essential services or reopened services allowed by [Executive Order GA-18], allows gatherings prohibited by [Executive Order GA-18], or expands the list of essential services or the list or scope of reopened services as set forth in [Executive Order GA-18].” As such, while the local ordinances do not directly conflict with Executive Order GA-18, the new order prohibits enforcement of penalties for noncompliance.
Like the prior executive orders, Executive Order GA-18 does not prohibit people from accessing essential or reopened services or engaging in “essential daily activities” (like hunting, fishing, jogging, bicycling, or visiting parks), as long as precautions are implemented to minimize in-person contact with people who are not in the same household. Moreover, schools remain closed to in-person classroom attendance by students through the end of the 2019-2020 school year, and individuals are still not allowed to visit nursing homes or assisted living facilities.
Executive Order GA-18 expires at 11:59 pm on May 15, 2020 unless modified or superseded by the Governor. If all goes well during this first phase of the re-opening of Texas’ economy and the state does not see COVID-19 flare-ups, Governor Abbott is expected to issue further orders in mid-May 2020 allowing additional businesses to open and permitting businesses covered by Executive Order GA-18 to increase their occupancies.