Texas Legislature endorses Governor’s unilateral and unchecked use of emergency powers

Before the Texas Legislature convened for its regular session in January 2021, both Republicans and Democrats expressed interest in reforming the governor’s unilateral authority under the Texas Disaster Act. But they didn’t, with one minor exception.  Ultimately, by failing to revise or amend the Act and exercise its right to check executive power, the Texas Legislature has effectively approved the governor’s use of expansive emergency powers during a pandemic.

Related blog post: Courts to Decide Whether Governor has Unlimited Power in a Disaster

The Texas Disaster Act of 1975—sometimes called the Emergency Powers Act—authorizes the governor to “suspend the provisions of any regulatory statute [or rule] prescribing the procedures for conduct of state business . . . in coping with a disaster.” Tex. Gov’t Code § 418.016(a). Governor Greg Abbott has exercised this executive power during the COVID-19 pandemic (unilaterally and broadly), unchecked by the courts or the Texas Legislature.

In 2021, legislative chambers in at least 46 states, Guam, and Puerto Rico introduced or are considering proposals that relate to legislative oversight of governors’ emergency powers.

In Texas, several such proposals were filed—but few gained any momentum. Ultimately, the Texas Legislature failed to pass any significant legislation curbing the governor’s emergency powers during a pandemic.

There was one exception—the Texas Legislature passed a proposal (HB 1500) that prohibits the governor from issuing an executive order that prohibits or restricts the business or operations of a firearms or ammunition manufacturer, distributor, wholesaler, supplier, or retailer or a sport shooting range during a declared disaster.

In our October 2020 paper, The Texas Disaster Act—This is What Democracy Looks Like?, we proposed amendments to the Texas Disaster Act to ensure legislative oversight over the governor’s emergency powers. Specifically, amending the statute to: (i) require legislative approval for any extension of a disaster declaration; (ii) require the governor to call a special session if the governor seeks an extension and the legislature is not convened; and (iii) permit the legislature to meet remotely to consider the governor’s request for an extension.

The Legislature adopted none of these proposed amendments.  Every effort to curb the Governors powers failed, with the limited exception of HB 1500.

Regular Session

• HB 1500—Effective 9/1/21. HB 1500 amends the Texas Disaster Act to ensure that neither the governor, nor local governments, have the authority to prohibit or restrict the business or operations of a firearms or ammunition manufacturer, distributor, wholesaler, supplier, or retailer or a sport shooting range during a declared state of disaster.
• HB 3—Failed. Under HB 3, the governor would have been required to call a special session for the legislature’s permission to extend certain executive orders or proclamations. Under current law, the only authority for the legislature to convene outside a regular session lies with the governor. HB 3 also would have created a legislative oversight committee that in some cases would have had the authority to terminate a pandemic disaster declaration issued by the governor. The proposal’s low bill number signaled it was a priority of new House Speaker Dade Phelan. But the bill died in conference committee, after the Senate overhauled it and the House declined to agree with the changes.
• SJR 29 / HJR 160—Failed. These identical bills proposed a constitutional amendment requiring the governor to call the legislature into special session following certain disaster or emergency declarations.
• SJR 33—Failed. SJR 33 proposed a constitutional amendment authorizing the lieutenant governor and speaker of the house of representatives to call the legislature into special session by joint proclamation, whether a state of disaster has been called or not.
• HJR 42—Failed. HJR 42 proposed a constitutional amendment to prohibit the governor from issuing an order or proclamation that violates or suspends constitutional rights and require the governor to call a special session in order to renew an order or proclamation declaring a state of disaster or emergency.
• HJR 47—Failed. HJR 45 proposed a constitutional amendment to require the governor to call a special session in order to renew an order or proclamation declaring a state of disaster or emergency.
• SJR 50 / HJR 150—Failed. These identical bills proposed a constitutional amendment to authorize the legislature to review and terminate any order issued by the governor during a state of disaster or emergency declared by the governor.
• HJR 65—Failed. HJR 65 proposed a constitutional amendment requiring the governor to call the legislature into special session on petition of at least two-thirds of the members of each chamber.
• HJR 151—Failed. HJR 151 proposed a constitutional amendment requiring the legislature to convene in special session when a state of emergency extends over 60 days in an area containing over 60% of the total state population and at least two-thirds of the members of each chamber request the special session.
• HB 3785—Failed. HB 3785 would have restricted the governor’s authority to suspend regulatory statutes, orders, and rules during a declared state of disaster.

1^st Special Session

• HB 173—Failed. HB 173 would have provided for judicial review of disaster orders and prohibited the governor and the presiding officers of political subdivisions from issuing an executive order, proclamation, or regulation that requires a person other than a public employee or medical worker to wear a mask or regulates other activity during a declared disaster.

2nd Special Session

• HB 237—Failed. HB 237 would have prohibited the governor from issuing an executive order, proclamation, or regulation that relates to the wearing of face masks or coverings in public schools or open-enrollment charter schools.
• HB 128—Failed. HB 128 would have prohibited the governor and local officials from issuing an executive order, proclamation, or regulation that requires a person to wear a mask or personal protective equipment unless expressly provided by statute.