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Masking Texas! Governor Issues Statewide Face Mask Order

(July 2, 2020)

 

By: Howard M. Bookstaff, General Counsel

 

Today, July 2, 2020, Governor Abbott issued Executive Order GA-29 relating to the use of face coverings during the COVID-19 disaster.          

 

            The Governor's Order recognizes that we continue to have a problem with the spread of COVID-19. Specifically, the Governor has found that: 

  • As Texas reopens in the mist of COVID-19, an increased spread is to be expected.
  • The key to controlling the spread and keeping Texas residents safe is for all Texans to consistently follow good hygiene and social-distancing practices.
  • Due to recent substantial increases in COVID-19 positive cases, positivity rate and hospitalizations, further measures are needed to achieve the least restrictive means for reducing the growing spread of COVID-19, and to avoid a need for more extreme measures.
  • Given the current status of COVID-19 in Texas, requiring the use of face coverings is a targeted response that can combat the threat of public health using the least restrictive means, and if people follow this requirement, more extreme measures may be avoided.
  • Wearing a face covering is important not only to protect oneself, but also to avoid unknowingly harming fellow Texans, especially given that many people who go into public may have COVID-19 without knowing it because they have no symptoms.

What Does the Order Require?

            The Order provides that every person in Texas shall wear a face covering over the nose and mouth when inside a commercial entity or other building or space open to the public, or when in an outdoor public space, wherever it is not feasible to maintain six feet of social distancing from another person not in the same household. However, the face-covering requirement does not apply to:

  1. any person younger than 10 years of age; 
  2. any person with a medical condition or disability that prevents wearing a face covering;
  3. any person while the person is consuming food or drink, or is seated at a restaurant to eat or drink; 
  4. any person while the person is (a) exercising outdoors or engaging in physical activity outdoors, and (b) maintaining a safe distance from other people not in the same household;
  5. any person while the person is driving alone or with passengers who are part of the same household as the driver;
  6. any person obtaining a service that requires temporary removal of the face covering for security surveillance, screening, or a need for specific access to the face, such as while visiting a bank or while obtaining a personal-care service involving the face, but only to the extent necessary for the temporary removal; 
  7. any person while the person is in a swimming pool, lake, or similar body of water; 
  8. any person who is voting, assisting a voter, serving as a poll watcher, or actively administering an election, but wearing a face covering is strongly encouraged;
  9. any person who is actively providing or obtaining access to religious worship, but wearing a face covering is strongly encouraged; 
  10. any person while the person is giving a speech for a broadcast or to an audience; or 
  11. any person in a county (a) that meets the requisite criteria promulgated by the Texas Division of Emergency Management (TDEM) regarding minimal cases of COVID-19, and (b) whose county judge has affirmatively opted-out of the face-covering requirement by filing with TDEM the required face-covering attestation form-provided, however, that wearing a face covering is highly recommended, and every county is strongly encouraged to follow these face-covering standards.

Can Protesters Still Protest?

            Yes. However, the Order provides that not excepted from this face-covering requirement is any person attending a protest or demonstration involving more than 10 people and who is not practicing safe social distancing of six feet from other people not in the same household.

What is the Penalty for Noncompliance?

            Following a verbal or written warning for a first-time violator of the face-covering requirement, a person's second violation is punishable by a fine not to exceed $250. Each subsequent violation is punishable by a fine not to exceed $250 per violation.

Additionally, local law enforcement and other local officials can and should enforce the Order, as well as local restrictions that are consistent with the Order. However, no law enforcement or other official may detain, arrest, or confine in jail any person for a violation of the Order or for related non-violent, non-felony offenses that are predicated on a violation of the Order. The Order prohibits confinement in jail as a penalty for a violation of any face-covering order by any jurisdiction.

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Do the orders apply to apartment communities?

            The Order provides that every person when inside a "commercial entity or other building or space open to the public" is to comply with the Order (with the exceptions indicated). The Order does not specify whether the term "commercial entity or other building or space open to the public" includes apartment communities providing shelter and services to residents of the apartment community. Whether the Order includes apartment communities can be the subject of legal interpretation and analysis. However, if we assume that apartment communities are similar to a commercial entity in terms of possible transmission of COVID-19, the Order provides guidance with respect to requiring individuals in an apartment community setting to wear face coverings.

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            We are in the middle of a pandemic! The rollercoaster ride continues! You can expect ebbs and flows with respect to what mitigating measures may be required by our government leaders and changes to the reopening process. Remember to always stay informed as to the latest requirements.