Abbott Issues Executive Order GA-36, OCA Responds

On May 18, 2021, Governor Abbott issued Executive Order No. GA-36 relating to the prohibition of governmental entities and officials from mandating face coverings or restricting activities in response to the COVID-19 disaster. This new order raised questions about how this prohibition impacted courts. Once again, the Office of Court Administration quickly sent out COVID Update #24 by email. If you did not receive, I have pasted the update below in its entirety.

Judges, Clerks, and Court Staff:

 

As you may be aware, the U.S. Centers for Disease Control has issued new health recommendations for fully vaccinated individuals recommending that fully vaccinated individuals no longer need to wear a face covering or socially distance in any setting. In addition, today, Governor Abbott issued Executive Order GA-34 [Editors note: It is GA-36 that was issued yesterday] strongly encouraging individuals to continue wearing face coverings over the nose and mouth whenever social distancing is not possible, but stating that no person can be required by any jurisdiction to wear or to mandate the wearing of a face covering. Certain entities are permitted to impose increased restrictions, including county judges in areas with high hospitalization, businesses, nursing and long-term care facilities, public schools, and county and municipal jails.

As the Supreme Court’s 36th Emergency Order states, courts may take any reasonable action to avoid exposing court proceedings to the threat of COVID-19, including requiring compliance with social distancing protocols and face coverings worn over the nose and mouth. As stated in Attorney General Opinion KP-0322, “judges possess broad inherent authority to control orderly proceedings in their courtrooms, and pursuant to that authority, they can require individuals in the courtroom to wear facial coverings” and “may require any person entering the courthouse in which they preside to wear a facial covering while in the courthouse.” The executive order issued today does not alter the Supreme Court’s current emergency order, the ability of a judge to control his or her courtroom, or requirements for those entering a court building who will be attending a court proceeding. As the Supreme Court’s 36th Emergency Order expires on June 1, a new order is expected in the coming days.

 While OCA will issue a full set of updated best practices in the coming days, OCA plans to alter its best practices recommendations to be consistent with CDC Guidance for face coverings and social distancing. Fully vaccinated persons should not be required but encouraged to wear a face covering, and fully vaccinated individuals should not be required to socially distance. Otherwise, courts should encourage all court participants and individuals in the courtroom to wear a face covering and socially distance, especially those who are unvaccinated. This may require designating certain parts of a court facility and courtrooms as a face-covering and/or socially-distanced zone while others are not. Courts should not inquire about vaccination status as this information is private information.

 As always, if you have questions or concerns, please do not hesitate to reach out to coronavirus@txcourts.gov.

 David Slayton

Administrative Director

Office of Court Administration

If you have not read GA-36 yet, here are some key takeaways:

Effective immediately, no governmental entity or official may require any person to wear a face covering. There are some exceptions to this including state supported living centers, government-owned or operated hospitals, the Texas Department of Justice, the Texas Juvenile Justice Department, and county and municipal jails.

Public schools shall update guidance for schools before June 5, 2021 and no student, parent, or other staff member or visitor may be required to war a face covering.

Governor Abbott additionally suspends certain statutes in the Government Code, Health and Safety Code, and Local Government Code as well as any other statute invoked by any local government entity or official in support of a face-covering requirement.

Under Section 418,173 of the Government Code, Abbott states that nay face-covering requirement by a local governmental entity or official constitutes a failure to comply and is subject to a fine of up to $1,000 beginning at 11:59 p.m. on May 21, 2021.

In the coming days, look for more guidance from the Supreme Court. At TMCEC, we will keep you updated with the latest information.

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